State High Court Asked to Overturn Death Penalty Ruling

The California Supreme Court was asked by a state prosecutor Monday to overturn a controversial decision under former Chief Justice Rose Elizabeth Bird that prevents jurors considering the death penalty from being told that the governor can commute a sentence of life in prison, clearing the way for parole of a convicted murderer.

The Bird court held in 1984 that the so-called “Briggs instruction,” given by judges to jurors in capital cases under the 1978 death-penalty initiative, was a “misleading half-truth” because juries were not told that the governor can also commute sentences of death.

The court concluded then that the instruction violated the state Constitution by improperly implying that only by returning a death sentence could jurors ensure that a dangerous defendant would not ultimately be released from prison.

But in oral argument Monday in Los Angeles, state Deputy Atty. Gen. George M. Hendrickson told the justices that now they should abandon the Bird court ruling. “The instruction does not tend to generate arbitrary or capricious infliction of the death penalty,” he said.

On the other side, Sacramento attorney Richard L. Phillips, defending the convicted killer of a 12-year-old Fresno girl, said the court should stand by the 1984 ruling as a way of maintaining stability in the law. Public confidence in the legal system requires “the belief that we are a government of laws and not people,” he said.

The case goes before the justices after the court underwent a dramatic shift in its makeup in the wake of the defeat of Bird and two other justices by the voters last November. Chief Justice Malcolm M. Lucas now leads the court--and five of its seven members are appointees of Gov. George Deukmejian, who led a conservative assault on the liberal-dominated Bird court during the campaign.

Instruction at Issue

The jury instruction at issue was added to the state’s capital punishment law under a ballot measure authored by former state Sen. John Briggs and approved by 72% of the electorate. In 1982, the justices held that the instruction violated the federal Constitution and its use came to a halt in California.

But a year later, the U.S. Supreme Court held 5 to 4 that the instruction was valid under the federal Constitution as a means of focusing jury attention on the defendant’s potential for repeated violence should he eventually gain release.

The high court ruling left the way open for the states to weigh such an instruction under their own constitutions. And in 1984, the California Supreme Court invalidated the Briggs instruction again, this time finding that it violated due process of law under the state Constitution. The lone dissenter in the 6-1 decision was Lucas, then the only Deukmejian appointee on the court.

The case now before the Lucas court involves Donald Griffin, who was convicted and sentenced to death by a Fresno County jury in 1980 for the rape and mutilation murder of Janice Kelly Wilson.

In briefs filed with the justices, state Atty. Gen. John K. Van de Kamp asked the court to overrule the 1984 decision and reject Griffin’s contention that use of the Briggs instruction in the case required that Griffin’s death sentence be overturned. Unless the Bird court precedent is reversed, at least eight pending death-penalty appeals in which the instruction was given could face retrial, he said.

The instruction, instead of being misleading, properly informed jurors that despite a sentence of “life imprisonment without parole,” a convicted murderer can eventually gain release through commutation, he said.

State Public Defender Frank O. Bell Jr. filed a brief criticizing Van de Kamp for trying to take advantage of the change in court membership to obtain “wholesale changes in criminal law.” The 1984 ruling was correct and consistent with court rulings in the majority of states that have considered the issue, Bell said. Any retreat from precedent on the issue would be “completely inappropriate,” he said.

In Monday’s 90-minute hearing before the justices, Phillips called the use of the Briggs instruction in Griffin’s case “highly prejudicial and highly inflammatory”--and said the court should reverse death sentences automatically in such circumstances.

Hendrickson countered that even if the court declines to reverse the 1984 ruling, it should invalidate a death sentence in which the instruction was given only when it could be shown it was “reasonably probable” that the verdict would have been different without the instruction.

Any such error in Griffin’s case was harmless and did not warrant reversal of his sentence, Hendrickson said.