Supreme Court Hears Death Penalty Issue

With three new justices sitting for the first time, the state Supreme Court was asked Monday to reject a bid by prosecutors to overturn a controversial decision made under former Chief Justice Rose Elizabeth Bird that could eventually force the reversal of dozens of death sentences in California.

Deputy state Public Defender Musawwir M. Spiegel told the court that it would be “morally dubious” to abandon the 1983 ruling or other decisions as binding precedents simply because the court has undergone a change in membership.

But the attorney’s spirited defense of the decision drew a sharp challenge from Justice Marcus M. Kaufman, one of the three new court members named by Gov. George Deukmejian to replace Bird and two other justices defeated in the November election.

“Mr. Spiegel, is it acceptable to overrule a decision if it was incorrectly reasoned and improperly decided?” Kaufman asked.

The exchange came in a pivotal case that may help signal the direction the new court will take under Chief Justice Malcolm M. Lucas.

It took place as the justices began hearing oral arguments in their Los Angeles courtroom on an array of cases that had been granted review under Bird--but now will be decided by a court dominated by Deukmejian appointees that is expected to be much more conservative.

All three new court members--Justices Kaufman, David N. Eagleson and John A. Arguelles--participated actively in the questioning of attorneys in cases throughout the day. But there were few indications of how they would vote when those cases are decided.

The tangled issues surrounding the death penalty--the key issue in the bitter campaign against Bird and Justices Cruz Reynoso and Joseph R. Grodin--are raised in nine capital cases the court is hearing this week.

With the odds perhaps shifting in his favor, state Atty. Gen. John K. Van de Kamp is making a renewed attempt to get the justices to overturn a series of Bird court rulings that otherwise may require substantial numbers of penalty retrials in capital cases. Of prime importance is the 1983 ruling, which requires that before it can issue a death sentence a jury must find that a defendant intended to kill his victim. The court has already overturned 14 death sentences on such grounds and prosecutors said Monday that 29 more could require a similar result unless the four-year-old precedent is overturned.

Van de Kamp is also asking the justices to reverse a ruling invalidating a judge’s instruction telling jurors not to be swayed by “mere sympathy” and another decision allowing jurors discretion to refuse to impose a death sentence even when aggravating factors in a case outweigh mitigating factors.

On Monday, the justices reviewed the case of Billy Ray Hamilton, convicted of killing three people with a shotgun at point-blank range during a robbery at a Fresno grocery store in 1980.

In 1985, the Bird court, citing the 1983 ruling, reversed Hamilton’s death sentence because the jury was not told it must find that Hamilton intended to kill. Later, the court agreed to rehear the case but was not able decide it before the three justices left office last January, requiring a third argument before a new court.

Spiegel, arguing in behalf of Hamilton, stressed the bedrock legal principle that courts should adhere to precedent and reverse past decisions only in rare circumstances.

Pointed Response

That eventually evoked a pointed response from Kaufman, widely viewed as the most conservative of the new justices, who questioned the wisdom of continuing to uphold a decision that was poorly reasoned and incorrectly decided. Kaufman cited the example of a turn-of-the-century ruling by the U.S. Supreme Court, upholding “separate but equal” treatment of blacks, that was followed for decades until overturned by the high court.

Deputy state Atty. Gen. Ward A. Campbell strongly defended the state’s attempt to overturn the 1983 precedent, pointing to what he said was its “devastating effect” on the criminal justice system.

“If a decision was rightly decided, we’d accept that,” Campbell said. “But we think it was wrongly decided . . . and the number of retrials and unnecessary reversals it will cause is enough to outweigh any value” of maintaining legal precedent.

But Campbell encountered a series of pointed questions from Justice Stanley Mosk, who voiced doubt that the electorate, in voting in 1978 for an expansion of the scope of capital punishment, intended to allow the death penalty for a defendant who accidentally kills someone during commission of a felony.

‘Indifference to Life’

“The public is very concerned about the rapists, muggers, deviants and others who show indifference to life,” said Campbell, contending that the possibility of the death penalty would deter the use of “deadly force” in the commission of rape, robbery and other felonies.

In rebuttal, Spiegel said reversal of the 1983 ruling could even enable the death penalty to be imposed if an unarmed burglar accidentally caused the death of a night watchman during a scuffle.

Allowing capital punishment for such an incident would not be allowed by federal courts, he said, and would only lead to more reversals.

In another case, the court heard arguments in a widely watched case testing a long-established legal doctrine allowing employers to dismiss “at will” workers who are not protected by collective bargaining agreements or civil service procedures.

The case involved a lawsuit brought by Daniel Foley, who claimed that he was improperly fired by a Los Angeles firm because he alerted company executives that his new supervisor had been under investigation for embezzlement at his previous job. Foley’s employers said they were already aware of the investigation and that Foley was dismissed for “performance reasons.”

Implied Commitment

Foley’s attorney, Steven J. Kaplan, told the justices that Foley was protected by an unwritten but implied commitment that he would be fired only for good cause--and that he was entitled to sue his former employer because his dismissal had been carried out in a “dishonest and deceitful” manner.

Robert V. Kuenzil, an attorney representing the employer, Interactive Data Corp., said there had been no express agreement protecting Foley from being terminated “at will” by the company. Adding major exceptions to the well-established rule would undermine the stability of the law and open employers to widespread lawsuits, he said.