Lucas Seeking Ways to Break Court Logjam

In one of his first new tasks, Chief Justice Malcolm M. Lucas is taking what he calls a “fresh look” at one of the biggest problems facing the state Supreme Court--a backlog of 171 capital cases that await action by the justices.

Lucas, sworn into office Thursday as successor to Rose Elizabeth Bird, is exploring a wide range of proposals to break the logjam of cases--including a constitutional amendment that would send death-penalty cases to state appellate justices first to perform the time-consuming initial review process that now must be done by the high court.

The death penalty was by far the most explosive issue in the fall election campaign that led to the defeat of Bird and Justices Cruz Reynoso and Joseph R. Grodin.

In the nine years since capital punishment was restored in California, the court has ruled in only 68 such cases, reversing the death sentence 64 times. Individual capital cases now routinely go on for years, officials point out.

Lucas was nominated to his new post by Gov. George Deukmejian, a sharp critic of the court and a death penalty supporter. But the new chief justice, in discussing the proposals with reporters, made no commitment to the changes and denied that their consideration was aimed at securing more affirmances of the death penalty.

“We’re not talking about a rush to death,” Lucas said after his confirmation. “We’re talking about carefully monitored, carefully considered and carefully reasoned review of these cases.”

Among other things, the new chief justice and other members of the court are considering:

- Whether to seek new laws that would send capital cases to state Court of Appeal justices to review trial records and rule on the validity of the conviction and sentence.

At present, death-penalty cases are sent on automatic appeal directly to the state Supreme Court. Initial review by appellate justices could save the high court considerable time and effort--and affirmances of the death penalty by the appellate justices still would go to the state Supreme Court for final review.

- Placing limits on the length of briefs filed by attorneys in capital cases. At present, such documents are voluminous, raising dozens of legal issues and exceeding 600 pages.

- Making an earlier determination of major issues involving the death penalty and selecting “lead cases” to be decided first, so that their resolution can lead to speedier rulings in other similar cases.

- Taking steps to speed the preparation of transcripts and other records made during capital trials. Transcripts of proceedings may exceed 20,000 pages of testimony and the process of preparing and authenticating such trial records can take over a year.

In recent years, legal authorities have devoted increasing attention to the backlog of capital cases. Supporters of assorted proposals to place some of the load on the appeal courts say that the present system consumes too much of the high court’s resources.

“There is no reason in the world why Supreme Court justices and all their staffs should have to go through mountainous records, examining the evidence and ironing out all of the procedural points when in all other cases that work is done by the Court of Appeal,” Bernard E. Witkin, a longtime expert on the judicial process, said in a recent interview.

But some authorities are skeptical of the plan, fearing that it would simply lengthen an already lengthy process--a concern that Lucas himself acknowledged.

Chief Assistant California Atty. Gen. Steve White said Friday: “The problem is most serious and there are so many cases that it will be impossible for the court to come anywhere near getting through the pending calendar in the coming year.

“Up to now at least, we’ve opposed efforts to give the Court of Appeal jurisdiction in capital cases. The primary fear is that this would simply add another layer to the process. But in recognition of the growing backlog, we’re willing to keep an open mind.”

Michael Millman, director of the California Appellate Project, an organization that assists lawyers representing defendants in capital cases, said it is doubtful that any major changes in the law, such as a constitutional amendment, could be legally applied to pending cases.

“If people are looking for an immediate solution, there is a substantial question whether any such changes could be applied to the current backlog,” he said.

In a detailed, four-page statement outlining his initial goals, Lucas said he will seek to integrate the three successors to the defeated justices into the court routine as soon as possible. Deukmejian is expected to name the three new justices in time for them to take office in early April.

At present, there are 382 cases pending before the court, including the 171 capital cases. While a limited number could be decided by the four justices now in office, the vast majority must await resolution by the new full court.

It will be the end of the year at least before the new court begins to issue rulings in many important cases, including those testing the validity of the state’s new uninsured motorist’s law and the legality of random roadblocks to detect drunk drivers.

Some non-capital cases that the court has agreed to hear may be dismissed as “improvidently granted,” an action that would reinstate lower court rulings in such cases.

Lucas said further that he will lead a review of the internal procedures of the court with an eye toward “streamlining our techniques and improving our performance.”

“Some sort of reexamination of the present system may be in order, especially in light of the statistics showing such a dramatic growth in court business during the last 25 years or so,” he said.

The chief justice noted that there has been no expansion of the seven-member high court in over a century. But in the last 25 years, he said, the number of civil cases filed in superior courts has increased from 232,000 to 618,000 and the number of lawyers has grown from 21,000 to 101,000.