State Asks Justices to Bar Parole for Powell

State prosecutors Tuesday asked the California Supreme Court to overturn its controversial ruling last month ordering the release on parole of convicted “Onion Field” killer Gregory Ulas Powell.

In a petition for rehearing of the case, state Atty. Gen. John K. Van de Kamp and Deputy Atty. Gen. Dane R. Gillette said the court had improperly overridden the state parole board’s refusal to release Powell. The justices’ ruling, they said, “puts the public unnecessarily at risk.”

The 4-3 decision, one of a flurry of final actions by the court under Chief Justice Rose Elizabeth Bird, evoked widespread criticism from law enforcement authorities.

The request for reconsideration was the first of at least three attempts the attorney general is expected to make in the next few days to overturn decisions made by the court just before the Jan. 5 departure from office of Bird and Justices Cruz Reynoso and Joseph R. Grodin, who were defeated in the November election.

Those three justices joined with Justice Allen E. Broussard to provide the majority vote in a decision issued Dec. 29 calling for Powell’s release.

Rehearings are often sought but rarely granted. However, state prosecutors are hopeful that a new and likely more conservative court, with three new members to be appointed by Gov. George Deukmejian, will eventually decide to keep Powell behind bars.

Would Stay in Custody

If the petition for rehearing is granted, Powell would remain in custody pending a final ruling by the court.

Powell’s attorney, Dennis P. Riordan of San Francisco, said he will oppose the petition for rehearing.

“The ruling was not an extraordinary one and the court has already considered the arguments raised by the attorney general at great length,” Riordan said. “This case has drawn a lot of attention only because there was a book and a movie made about it.”

The lawyer also said he plans to file a petition today with the state Court of Appeal seeking Powell’s release from custody on bail pending final resolution of the case.

Powell, now 52, and Jimmie Lee Smith were convicted and sentenced to death for the kidnaping and murder of Los Angeles Police Officer Ian Campbell in an onion field near Bakersfield in 1963. Their convictions remain intact but their sentences were reduced to life in prison and Smith was recently released on parole.

The crime and the ensuing years of tangled and time-consuming legal proceedings were described in the best-selling book, “The Onion Field,” by Joseph Wambaugh, which was later made into a movie.

In 1977, the state Board of Prison Terms set Powell’s parole for 1983, but in 1982, after widespread protests, a separate panel of the board rescinded the order and ruled that he should remain in custody. The panel cited previous escape attempts by Powell that were not considered by the board in 1977.

A Superior Court judge reversed the board’s decision and said Powell should be freed. Later, the state Court of Appeal reinstated the board’s order, and then the state Supreme Court overturned that ruling in December and said Powell should be released.

The court majority, in an opinion by Broussard, said that in recent years Powell had become an “exemplary prisoner” and found that the parole board lacked sufficient evidence to justify rescinding its original order granting the inmate parole.

Justice Stanley Mosk, joined by Justices Malcolm M. Lucas and Edward A. Panelli, dissented.

In seeking a rehearing, Van de Kamp and Gillette contend that there is sufficient evidence to support the board’s decision to cancel Powell’s parole--including his lack of job prospects, inability to cope with stress, possible brain damage and potential dangerousness.

The prosecutors said also that the high court, in making its own review of the evidence, had “directly collided with the exclusive authority” of the board to assess an inmate’s fitness for parole.

Unnecessary Risk

“The court’s refusal to account for the (board’s) ongoing, legitimate concerns for public safety should Powell be released puts the public unnecessarily at risk,” the petition said.

Instead, the prosecutors said, the court should have reviewed the board’s rescission order only to ensure that rescission was based on some evidence and not “whim or caprice.”

At most, they said, the court should have ordered a new hearing by the board to reconsider the evidence.

Since the departure of Bird, Reynoso and Grodin, the court has entered a transition period, raising questions about how the court will proceed pending the official arrival of the new court members. And it is not clear yet whether the unnamed appointees will take office soon enough to consider a rehearing for Powell--or whether that question will be placed before temporary justices.

The rehearing petition was filed at a time when only four justices are sitting on the seven-member court. It is expected that it will be at least March before Deukmejian’s new appointees are chosen and confirmed in office.

Minimum Majority

In the interim, those four permanent justices--Broussard, Lucas, Mosk and Panelli--form the required minimum majority and can act on cases when there is no disagreement among them. If they cannot agree, however, appeal court justices will be called on a rotating basis to serve temporarily to take part in court votes, assuring that the court’s business will go on.

Under court procedures, the justices can take up to 90 days to consider petitions for rehearing.

Broussard, who is serving as acting chief justice pending a Feb. 5 confirmation hearing for Lucas for that post, has indicated that the court will defer action on rehearing petitions, if possible, until the new justices take their seats on the court.

The three dissenting justices in the Powell case remain on the court and could be expected to vote for rehearing. One more vote is required for reconsideration and that would have to come from either a new justice or a temporary justice.