Dozens of Death Verdicts May Turn on Court Restudy

Marvin Pete Walker Jr. was convicted and sentenced to death for the brutal murder of a 15-year-old boy who saw him rob a liquor store of $150 in San Jose in 1979.

But six years later, the state Supreme Court overturned Walker’s death sentence because of two procedural errors during his trial:

- The prosecution had failed to give the defense adequate notice that it intended to offer evidence that Walker had threatened at his preliminary hearing to “get me a D.A.”

- The judge had failed to properly instruct the jury that it could consider favorable character and background evidence about Walker as they considered whether he should be put to death for his crime.

Now, in a legal contest that could affect dozens of convicted murderers facing execution, the Walker case is before the Supreme Court for rehearing. And its re-emergence comes at a time when the court is undergoing a philosophical shift to the right, since the defeat of former Chief Justice Rose Elizabeth Bird and two other justices in the Nov. 4 election.

At issue is what standard the court should apply to determine when a procedural mistake can be deemed “harmless error,” thus leaving a death sentence intact.

In the Walker case and others, state Atty. Gen. John K. Van de Kamp is urging the court to abandon a standard it adopted 24 years ago requiring reversal of a death sentence whenever there is “any substantial error” during the penalty trial.

State prosecutors have been asking the justices to ease that standard to require new trials only when there is a “reasonable probability” that a legal error actually affected the verdict--the same standard that has been used in ordinary criminal cases.

“The fact is that it is virtually impossible to try any capital case without some technical error occurring,” Chief Assistant Atty. Gen. Steve White said in an interview.

“Many errors alleged by defendants do not implicate the Constitution or otherwise suggest a real injustice has occurred,” he said. “When you read the cases, there is no question about the guilt of the defendant. There is no suggestion that the wrong man has been convicted.”

A ruling adopting the state’s theory of the proper way to measure the harm caused by legal errors could mean that a substantial number of death penalty verdicts would be upheld. By White’s estimate, the “great majority” of the more than 170 death cases now before the court could be affected by such a ruling.

The state’s new bid is being vigorously opposed by defense attorneys, who are urging the court to stick to its previous standard and to put the burden on the state to prove “beyond reasonable doubt” that any such error was harmless.

Such a standard has been mandated by the U.S. Supreme Court when a federal constitutional right--such as the right to confront an accuser--is at issue.

“Death is different,” Jean R. Sternberg of the California Appellate Project, a group that assists defendants in capital cases, told the justices in oral arguments last week in the Walker case. “The reason it’s different is because of its finality.”

In an interview, Sternberg stressed the complex nature of capital proceedings, in which juries decide the guilt and penalty phases of a case separately and receive elaborate instructions on the law from the judge.

“You never really know what prompts the jury to return a death verdict,” she said. “All 12 jurors may have had different reasons. So you need a test that will assure that not one of them was affected by an error.”

The issue received considerable attention from the justices last week as they heard another series of capital cases in a four-day special calendar.

The session was convened as part of a concerted effort to reduce the huge backlog of cases left undecided by the old court. Of the 93 cases set for hearing since three new appointees of Gov. George Deukmejian were seated in March, 33 involve the death penalty.

The court under Bird had agreed to rehear the Walker case after overturning his death sentence in December, 1985.

In a 90-minute hearing Monday, Deputy Atty. Gen. Dane R. Gillette noted that the state Constitution calls for reversing a verdict on the basis of procedural error only when there has been a “miscarriage of justice.” Any error in Walker’s trial fell far short of that standard, he told the court.

But Gillette underwent sharp questioning from a skeptical Justice Allen E. Broussard, author of the 1985 majority opinion that had overturned Walker’s death sentence.

Broussard suggested that errors in capital cases should be given a “higher scrutiny”--and asked the state attorney whether he really meant to contend that a mere “51% probability” that an error was harmless would be sufficient to uphold a death sentence.

“If there was no miscarriage of justice,” Gillette replied, “you affirm the verdict.”

Gillette argued that neither error cited by Walker in his appeal was serious enough to affect the outcome of his trial.

Even if the defense did not know before the start of the guilt-phase of the trial that the prosecution intended to present testimony that Walker threatened prosecutors, the defense did know one week before the penalty phase began. That meant there was “substantial compliance” with the law’s requirement that the defense receive adequate time to prepare its case, Gillette said.

Nor was the trial judge’s failure to properly advise the jury of how to weigh testimony about Walker’s character sufficient reason to overturn his conviction, Gillette said. Any confusion that resulted was overcome by other instructions the judge gave telling jurors they could consider “pity and sympathy” for the defendant, Gillette said.

Similar exchanges about the proper way to measure the impact of legal errors took place a day later in the case of Russell Coleman, who was sentenced to death for the 1979 rape and strangulation murder of a 27-year-old woman in San Francisco.

Kaufman’s Comment

Several questions came from Justice Marcus M. Kaufman, a Deukmejian appointee who told reporters after his confirmation in March that he expects the new court to take a closer look at trial errors to see whether they really are “prejudicial” to a defendant. “I’m not sure that has always been adhered to in the past,” he said at the time.

In last week’s hearings, Kaufman pressed state attorneys to better define the “reasonable probability” test they want to impose in assessing the impact of legal errors. Does it mean “more than a 50% chance?” he asked.

“I think it refers to rationality,” replied Deputy Atty. Gen. Mary A. Roth, explaining that the test the state proposes could be based on whether a “rational jury” would have returned a different verdict were it not for the error in the case.

Justice Edward A. Panelli expressed doubt about trying to base a harmless error standard on numerical probabilities.

“Aren’t we trying to quantify terms that are impossible to quantify?” he asked.

“Exactly,” Roth answered.