State Supreme Court Asked to Rehear Case

The state Supreme Court was asked Friday by the state attorney general to reconsider a ruling issued Jan. 2 reversing the death sentence imposed in a grisly 1981 torture-murder case in San Bernardino.

In a wave of final actions by the court under Chief Justice Rose Elizabeth Bird, the justices held 4 to 3 that Melvin Meffery Wade is entitled to a new penalty trial in the killing of his 10-year-old stepdaughter.

Wade was accused of fatally beating the girl during a series of incidents in which he ordered her to shut herself into an old Army duffel bag he placed in an attic crawl space and, later, wrapped a dog leash around her neck and attempted to hang her from a nail on the wall.

The court majority upheld Wade’s conviction but found that in considering his sentence jurors had been improperly instructed not to be swayed by “mere sympathy.” That instruction might have prevented the jury from considering character and background evidence that might have justified a life sentence rather than death, the court said.

Bird and Justices Cruz Reynoso and Joseph R. Grodin, who left office Jan. 5 in the wake of their defeat in the Nov. 4 election, all voted to overturn the death penalty for Wade, joining Justice Allen E. Broussard to form a majority. Justices Stanley Mosk, Malcolm M. Lucas and Edward A. Panelli dissented.

The court based its decision largely on a 1985 ruling that invalidated the sympathy instruction in the case of Albert Greenwood Brown, which has now been accepted for review by the U.S. Supreme Court.

Lucas, in a dissent, said the high court’s move to examine the 1985 ruling had “substantially shaken” its usefulness as a basis for the state court’s subsequent decision in the Wade case.

Rehearings are not often granted but the close, 4-3 vote and the impending appointment of three new justices by Gov. George Deuk-mejian may lead to reconsideration of the case, prosecutors say.

The court can take up to 90 days after a decision is issued to order a rehearing of the case. Thus, if the three dissenters agree to a rehearing, the required fourth vote for reconsideration could be provided by an as-yet unnamed Deukmejian appointee--or an appellate court justice sitting temporarily until the new nominees take office.

In a petition for rehearing, Deputy state Atty. Gen. Robert B. Shaw said the “mere sympathy” instruction properly prevents jurors from rendering verdicts based on “untethered emotions or sentiment” instead of the facts of the case.

He said the instruction actually helps ensure a fair trial for the defendant by telling jurors that they should not be swayed by sympathy, not only for the defendant, but for the victim or his family as well.

Shaw also noted that other judicial instructions allow the jurors to consider any mitigating evidence about the crime or the defendant that might help his case.

In an interview, Shaw said that if the court agrees to reconsider the case, it likely would not be reheard and decided until after the U.S. Supreme Court has ruled in the 1985 case. A ruling by the high court upholding the sympathy instruction in that case could lead the state court to reach a similar conclusion in the Wade case, he said.

Deputy state Public Defender Donald L.A. Kerson, one of the attorneys representing Wade, said he would file a brief with the court opposing reconsideration of the Jan. 2 ruling.

Kerson said there were several other procedural errors in the case that supported reversal of the death sentence. “Even if there is a rehearing, it is likely to end in the same result,” he said.