State High Court May Affirm More Death Penalties

For nearly a decade, the California Supreme Court has grappled with the intricate legal questions that surround the death penalty, restored in this state by the Legislature in 1977 and broadened in scope by the voters the following year.

Now, with six of the seven justices on the ballot this fall, the politically charged issue is at the forefront again, with seven capital cases scheduled for argument when the court takes the bench today.

Major questions about the state’s death penalty statutes remain to be resolved--and authorities say that even if the law withstands further legal attack, it still could be at least three years before an execution takes place.

Nonetheless, the California court may be nearing a turning point on capital punishment. While the justices have overturned 56 of 59 death sentences they have reviewed thus far, there are signs that the court may be ready to affirm more capital sentences.

Justices Deadlocked

Since January, the court has decided to reconsider three cases in which it had previously overturned a death sentence and it has ordered re-argument in six other currently pending cases--an apparent indication that the justices are deadlocked 3 to 3 and need a deciding vote from Justice Edward A. Panelli, Gov. George Deukmejian’s newest appointee to the court and a sharp critic of the court’s death penalty record.

Still another case in which the justices overturned a capital sentence is being reconsidered by order of the U.S. Supreme Court.

Some court members have attributed the high reversal rate largely to flaws in the language of the 1978 death penalty law and have implied that more death penalty affirmances are likely as trial courts begin to apply the justices’ guidelines to new cases.

“We have been forced to overturn cases to clarify the law,” Justice Cruz Reynoso said in a recent television appearance. “By now we’ve worked out most of the bugs in the death penalty law.”

A shift on the court could also take place if the voters remove any members of the court’s liberal wing who are on the ballot in November. Chief Justice Rose Elizabeth Bird and Justices Reynoso and Joseph R. Grodin all have been targeted for defeat by organized groups critical of their votes in capital cases.

If such a realignment takes place, some authorities predict it would result not only in more death penalty affirmances but also in more attempts to impose the death penalty by prosecutors. By recent count, 187 people face execution in California, out of 1,765 nationwide.

“With the court in transition, more prosecutors will be willing to seek the death penalty,” Deputy State Atty. Gen. Pete Wilkinson said.

“While there is a solid anti-death penalty majority on the court, a lot of prosecutors have concluded it wasn’t worth the effort to seek the death penalty. That could start to turn around in the future.”

The prospect of change on the court comes as the death penalty emerges as one of the key issues surrounding the justices on the November ballot.

Sentiment Against Bird

The California Poll recently showed that voter sentiment against Bird centered on her record on capital punishment. Bird, alone among the justices, has voted against the death penalty in every capital case she has considered.

Deukmejian last week announced he would oppose not only Bird, but also Reynoso and Grodin, citing “lack of impartiality and objectivity” in their votes against the death penalty. Reynoso has voted to overturn 44 of 45 death judgments he has reviewed since joining the court, while Grodin has voted to reverse 38 of 43.

But Grodin in particular could cast pivotal votes in future rulings should he join with three other court members generally viewed as more likely to uphold the death penalty: Justices Stanley Mosk, a moderate liberal, and Justices Malcolm M. Lucas and Panelli, Deukmejian’s two appointees to the court.

Grodin dissented last December in three death judgments the court overturned and later joined with Lucas, Mosk and Panelli, who replaced Justice Otto Kaus on the court, to provide a pivotal fourth vote to reconsider those rulings.

Mosk is a critic of the death penalty but has nonetheless voted in recent months to affirm 15 of 21 death sentences the court majority reversed. Since joining the court, Lucas has consistently voted to uphold the death penalty and Panelli has voted to affirm the conviction in the only capital case in which he has participated.

The capital cases now pending in California involve a wide range of issues, but legal experts agree that two questions awaiting resolution could have the broadest impact.

The first issue is whether the state Supreme Court should substantially modify its previous rulings requiring that juries must find that convicted murderers facing death actually intended to kill their victims.

Constitutionality

The other far-reaching question is whether the death penalty should be declared unconstitutional because it is unfairly being applied according to the race of the victim or the defendant.

In both instances, eventual rulings could affect scores of pending capital appeals.

The “intent” question will arise in the first case the court is to hear Tuesday, involving Bernard Lee Hamilton, convicted of a 1979 dismemberment murder of Eleanore Frances Buchanan in San Diego.

The justices earlier had overturned Hamilton’s sentence because the jury did not specifically find Hamilton intended to kill, even though the victim’s hands and head had been cut from the body.

The court majority found that it was at least theoretically possible that death had occurred accidentally during commission of a robbery and kidnaping, and the body was later mutilated to prevent identification.

But the U.S. Supreme Court set aside the ruling and directed the state court to reconsider the case in light of a high court decision that a murder sentence need not be overturned simply because the jury received erroneous instructions from a judge.

New Arguments

The state court set the Hamilton case for new arguments, asking attorneys to address questions raised by that U.S. Supreme Court ruling and an earlier high court decision that said a reviewing court could determine that there was the required intent to kill even when the jury had not been instructed to make that finding.

The state court also has asked attorneys to file briefs on the question of whether those high court rulings affect dozens of other California cases that raise similar issues.

The state attorney general’s office is asking the justices to abandon their previous holding that except for limited circumstances, a death penalty must be reversed when the jury did not find intent to kill.

That ruling has resulted in 15 death penalty reversals thus far, and lawyers for the state estimate that ultimately up to 75 other sentences could be overturned under the “intent” decision.

Issue Clarified

In such cases, when the defendant wants to claim he did not intend to kill, habeas corpus proceedings can be held in which the courts can hear evidence and rule on the intent question, the state says.

In Hamilton’s case, Deputy State Atty. Gen. Pat Zaharopoulos said in a brief to the court, there was absolutely no indication that Hamilton did not intend to murder the victim--and his death sentence should be reinstated.

“It is inconceivable that a person who accidentally killed would then calmly cut and saw apart the head and hands” of the victim, Zaharopoulos said.

But lawyers representing defendants whose cases may be affected by the court’s ruling are urging the justices to stand by their previous rulings.

“The defense argument is that it is inappropriate for an appellate court to make a finding on the basic issue of intent in such cases,” said Michael G. Millman, executive director of the California Appellate Project, a nonprofit group established in 1984 to help provide lawyers for defendants in death penalty appeals.

Right to a Jury

“The defendant has the right to a jury determination of that crucial issue.”

Barry L. Morris of Oakland, who is representing Hamilton, contends that neither of the U.S. Supreme Court decisions affects the California cases because the state court’s rulings on the issue have been based on state law.

In Hamilton’s case, he said, the jury was improperly told that it made no difference whether the defendant intended to kill or not--a legal error that necessitates a new trial.

The other key question awaiting resolution has emerged in the case of Earl Lloyd Jackson, a black defendant sentenced to death for the 1977 murders of two elderly white women in Long Beach.

Experts working with Jackson’s attorneys are now analyzing hundreds of California murder cases, seeking evidence to support their contention that the death penalty is more often imposed when the victim is white and/or the defendant nonwhite.

Previous studies undertaken in California and other states have found such disparities--and defense attorneys say such evidence could provide grounds for reversing countless death penalties because of racial discrimination.

Issue in Three Cases

Eric S. Multhaup, a San Francisco attorney representing Jackson, notes that the discrimination issue is being raised in one form or another in all three cases in which the state Supreme Court has upheld death sentences. Those three cases--involving Jackson, Robert Alton Harris and Stevie Lamar Fields--have further appeals pending in state and federal courts.

“It would be inconceivable to permit an execution before this issue is resolved,” Multhaup said.

Attorneys for the state are taking the position that general statistical data provides little or no information about whether an individual defendant has suffered discrimination.

“Whatever disparity there appears to be, when the evidence in Jackson’s case is examined, we won’t see any suggestion of discrimination by race,” says Deputy Atty. Gen. Susan L. Frierson.

Further proceedings in the Jackson case are scheduled this fall before former state appellate Justice Bernard Jefferson, specially appointed by the state Supreme Court to hold hearings and make recommendations on Jackson’s claims.

Similar Allegations

Meanwhile, the U.S. Supreme Court, in the term beginning in October, will hear similar allegations of discrimination raised by Warren McCleskey, a black Georgia man convicted and sentenced to death for the murder of a white police officer.

While the state court could ultimately rule in Jackson’s case on the basis of California law, the U.S. Supreme Court’s resolution of the question--expected by next spring--is likely to prove decisive in the outcome of pending cases in this state and throughout the nation, attorneys say.

Even at that, the appeal process in a capital case is a long and arduous one, taking years to wind through state and federal courts. And lawyers who handle such cases say they do not expect an execution to take place in California in the near future.

A capital appeal can include a court record of 5,000 pages--with some reaching 20,000 pages in all. At the state Supreme Court, it often takes a full day for one justice to simply read the legal briefs in a single case.

Defense Attorneys Sought

The California Appellate Project, nearing the end of its second year in operation, has seven attorneys at work finding lawyers willing to accept court appointments to represent condemned murderers and then to help those lawyers file and argue their appeals.

It was created to compensate for sharp cutbacks in the state public defender’s office and a resulting backlog of pending cases that saw some appeals come to a procedural standstill because of a lack of available counsel.

The backlog has been virtually eliminated, according to director Millman, but finding lawyers to handle such cases is still difficult, even though the court has increased the rate of compensation to $60 an hour from $40 an hour, plus expenses.

“Things still aren’t moving as fast as they should, but the flow is better than it was,” Millman said.

Even after a death sentence is affirmed by the state Supreme Court, years of appeal may lie ahead. A defendant then may take his case to the federal courts, including the U.S. Supreme Court. And then, even when the high court rejects such an appeal, further review may be sought in state and federal courts in habeas corpus proceedings, in which a broad range of issues may be raised.