Onion Field Parole, 2 Death Reversals to Be Reviewed

Led by a new conservative majority, the California Supreme Court agreed Thursday to reconsider a controversial ruling ordering the parole of “Onion Field” killer Gregory Ulas Powell and two death penalty reversals issued by the old court under former Chief Justice Rose Elizabeth Bird.

In an unprecedented action, the court, now dominated by appointees of Gov. George Deukmejian, granted petitions for rehearings by state Atty. Gen. John K. Van de Kamp in six criminal cases--including a key test of Proposition 8, the 1982 Victims’ Bill of Rights initiative.

The cases to be reconsidered involve numerous issues. The new court will take another look at a milestone 1982 ruling barring testimony from witnesses who previously have been hypnotized to aid their recall, and the justices’ refusal as recently as January to allow any use of statements improperly obtained from defendants.

The rehearings were announced the day after the court met in its weekly conference attended for the first time by Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman, the three Deukmejian nominees who were sworn into office last week.

The action confirmed widespread speculation that the new court would likely move to review some of the more controversial criminal rulings issued just before Bird and Justices Cruz Reynoso and Joseph R. Grodin left office Jan. 5, after their defeat in the Nov. 4 election.

Rehearings are rarely granted by the court, and the action Thursday was the most sweeping such action by the state Supreme Court in recent memory. Court decisions ordinarily become final within 30 days after they are issued. But if it wishes, the court can take up to 90 days--30 days plus a 60-day extension period--to decide whether to grant petitions for rehearing.

In five of the six cases that will be reconsidered, decisive votes were provided by the three departed justices of the seven-member court.

The Powell case represented one of the most publicized disputes to come before the court, which was dominated by liberals during Bird’s nine-year tenure.

Powell, now 53, 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. Later their sentences were reduced to life in prison.

The crime, trial and years of tangled legal proceedings that followed were the subject of a best-selling book, “The Onion Field,” by Joseph Wambaugh.

Smith was paroled in February, 1982, and Powell was set to be released a few months later--but in the wake of widespread protests, the state Board of Prison Terms reversed its previous decision to grant Powell parole.

In a 4-3 decision issued last Dec. 29, the justices overturned the board’s action, concluding that the board lacked sufficient evidence to justify reversing its previous conclusion that Powell was suitable for parole.

The majority opinion was written by Justice Allen E. Broussard and was joined by Bird, Reynoso and Grodin. Justice Malcolm M. Lucas, who later became chief justice, and Justices Stanley Mosk and Edward A. Panelli dissented.

‘Public Unnecessarily at Risk’

The justices’ decision was assailed by law enforcement authorities, and Van de Kamp sought a rehearing in the case, contending that the prison board’s action was valid and that the court’s decision “puts the public unnecessarily at risk.”

Powell remains in state prison at Vacaville and will remain in custody until the new court hears oral arguments in the case and issues a new decision.

The order granting a rehearing of the case was signed by Lucas, Mosk, Panelli, Arguelles, Eagleson and Kaufman.

Van de Kamp, in a statement, said he was “pleased” by the justices’ action Thursday in all six cases and added that it was his hope that the court “will reverse itself and keep Powell in state prison.”

He noted that although a rehearing does not assure a different decision, it is “a sign that the court might well reverse” some or all of the six rulings.

Los Angeles Police Chief Daryl F. Gates called the action “very encouraging and much appreciated,” saying: “The only prison open door that Gregory Powell should pass through leads into a little green room where he was twice sentenced to go. It’s the gas chamber. It is scandalous that he did not go there.”

An attorney for Powell, Karen Snell of San Francisco, said the action “does not bode well” for her client. Powell, she said, viewed the action as a “political decision” and had been prepared for it.

The court also said it will rehear two decisions issued Jan. 2 that overturned death sentences issued to convicted killers. In all, the Bird-led court reversed 64 of the 68 death sentences it reviewed after capital punishment was restored in 1977. The issue played a key role in the voters’ rejection of the three justices last November.

1981 Torture-Murder Case

In one case, the justices will re-examine a 4-3 ruling reversing the death sentence issued to Melvin Meffery Wade for the 1981 torture-murder of his 10-year-old stepdaughter in San Bernardino.

The court majority had found that the jury in the case had been improperly instructed not to be swayed by “mere sympathy.” The U.S. Supreme Court ruled Jan. 27 in another case from California that such an instruction was permissible under the federal Constitution.

Lucas, Panelli, Arguelles, Eagleson and Kaufman all voted for a rehearing in the case.

Also to be reviewed by the new court is a 6-0 decision overturning the conviction and death sentence of Joe Edward Johnson for the 1979 bludgeoning murder of a woman in Santa Rosa. The court found that testimony had been improperly admitted from a witness who had been hypnotized to aid in the identification of the alleged assailant. The justices held that such testimony was inadmissible.

Lucas, Panelli, Eagleson and Kaufman voted for reconsideration.

In other action, the court agreed to reconsider:

- A 5-2 decision on Jan. 2 in which the court, limiting the effect of the 1982 anti-crime initiative, held that incriminating statements obtained improperly by police from a defendant cannot be used later to challenge his truthfulness at trial.

The court, acting in the Santa Barbara robbery case of Michael D. May, found that the initiative did not require state courts to follow U.S. Supreme Court rulings that have allowed such statements to be used to impeach a defendant’s testimony.

Voting to rehear the case were Lucas, Panelli, Arguelles, Eagleson and Kaufman.

- A 5-2 decision on Jan. 2 concluding that James and Artie Mitchell, the owners of a San Francisco adult theater, were entitled to a jury trial before facing jail terms on contempt charges for violating a court order forbidding obscene performances at their theater. Lucas, Panelli, Arguelles and Eagleson voted for a rehearing.

- A 6-1 ruling on Jan. 2 in the robbery case of Carl Wright of San Francisco holding that jurors must be strictly cautioned by a trial judge about the possibility of mistaken identification by eye-witnesses. Lucas, Panelli, Eagleson and Kaufman voted to rehear the case.

In another case testing the traditionally confidential peer review system of the academic community, the justices let stand a ruling by a state appellate panel upholding the refusal by Stanford University Professor Harold Kahn to testify about statements he made during a closed faculty meeting considering tenure for another professor.

In the case, Ivor Davies, a former visiting professor at Stanford, brought suit contending that he had been improperly denied tenure by the history department. Davies obtained a trial court order requiring Kahn to submit to questions about allegedly defamatory remarks he made during the meeting about Davies. Kahn successfully contested the order, contending that being forced to testify would violate his right to privacy and academic freedom.