Don’t Expect Fast Action to Overturn Bird Court: Lucas

Justice Malcolm M. Lucas, nominated to succeed Rose Elizabeth Bird as California chief justice, has told a state legislator that it is unlikely that the new state Supreme Court will be able to act quickly to overturn three controversial death penalty rulings issued by the old court.

In a letter to a state Assemblyman Gary A. Condit (D-Ceres) that was released Thursday, Lucas said the backlog of cases in line for reargument before the court probably will prevent the justices from considering reversal of decisions for some time.

He noted also that the undetermined views of the three unnamed incoming justices add to the “uncertainties and variables” of reconsidering decisions.

Lucas, nominated by Gov. George Deukmejian to head the court, will take the post of chief justice if confirmed, as anticipated, by the state Judicial Appointments Commission on Feb. 5.

Deukmejian is expected to nominate three new justices by next month. They will replace Lucas and Justices Cruz Reynoso and Joseph R. Grodin, the latter two defeated along with Bird in the November election. Thus, along with Lucas and Justice Edward A. Panelli, the governor will have appointed five justices to the seven-member court.

In the letter to Condit, Lucas did not discuss the merits of the death penalty rulings at issue. His statements were an additional indication, however, that the conservative court expected under his leadership probably will go slowly in overturning rulings made by the liberal-dominated court under Bird.

Lucas’ letter of Jan. 5 responded to an inquiry from Condit. Such exchanges between Supreme Court justices and legislators are relatively unusual but not generally regarded as improper.

Condit had written Lucas after his nomination as chief justice to say that he was considering reintroduction of legislation to overturn Bird Court rulings that:

- Allow judges to reverse a jury’s finding that a convicted murderer had committed an act that made him subject to the death penalty.

- Held that crimes committed in connection with a murder must be proved independently of a defendant’s admission of guilt.

- Said that, unlike adults, juveniles convicted of first-degree murder could not be denied the possibility of parole.

The three cases went to the court before Lucas joined it in April, 1984, and he took no part in the decisions.

Condit’s letter asked whether there were new cases pending before the court in which the justices could reconsider the Bird Court rulings, thus possibly making legislation unnecessary.

‘Too Many Uncertainties’

Lucas’ reply, released by Condit in Sacramento, said it is likely that those issues are included in the 175 capital cases pending before the court.

“But I would not recommend that you defer legislative consideration of these issues in the expectation that such re-examination will soon occur, or that it will result in overruling these decisions,” Lucas said.

“There are simply too many uncertainties and variables involved, including the undetermined views of the incoming justices and the fact that much of our current caseload must be reargued before many new cases can be examined.

“From your point of view,” the justice continued, “the wisest course probably would be to assume that considerable time may pass before our court has the opportunity to address or reconsider any of the particular issues which interest you.”

At present, scores of cases face reargument before the court with the departure of Bird, Reynoso and Grodin. One major issue awaiting resolution--not raised by Condit--is whether the court should overturn previous rulings requiring jurors to specifically find that a defendant intended to kill his victim before they can impose the death penalty.

Responding to another question in Condit’s inquiry, Lucas recommended against imposing new time limits on the court in deciding capital cases. Such cases involve examining thousands of pages of trial testimony and legal briefs and raise dozens of complex issues. As a result, high court decisions ordinarily are not decided until years after trial.

‘Wholly Unnecessary’

Lucas said he is committed to expediting capital decisions and will “take whatever steps are possible to assure that my colleagues will cooperate in that venture.” Once the new court is functioning smoothly, any new deadline procedures “will prove wholly unnecessary,” he said.

Condit, in a memo sent Thursday to other members of the Assembly and Senate, said Lucas’ letter “clearly suggests that the new court will not be able to overturn Bird Court decisions in a timely manner” and that legislation would be the “best hope” for overturning the three decisions.

Condit said he will not support legislation imposing time limits on capital cases in view of Lucas’ opposition.