Death Penalty Upheld, First for New Court

The newly aligned California Supreme Court on Thursday upheld a death sentence for the first time, unanimously rejecting a wide-ranging appeal from a man convicted of killing a San Jose woman in 1978.

The court, in a 62-page opinion by Chief Justice Malcolm M. Lucas, affirmed the judgment of death rendered against David L. Ghent Jr. for the murder and attempted rape of Patricia Bert, who was found dead in her home with 21 stab wounds in her neck and chest.

Although the ruling was a narrow one, confined largely to the circumstances of the case, it may reflect a widely anticipated reluctance by the new court to overturn death sentences on procedural grounds when guilt is firmly established.

Several Errors Noted

The court agreed that there were several procedural errors in Ghent’s trial--but concluded that they were “harmless” because they could not have affected the outcome of the case.

The decision marked only the fifth time that the court has upheld a death sentence in the 70 cases it has reviewed since capital punishment was restored in California in 1977. The other four affirmances remain on appeal in state and federal courts.

The court’s record on death penalty cases was the central issue in the hard-fought judicial campaign last fall that resulted in the defeat of former Chief Justice Rose Elizabeth Bird and two other court members.

It is expected that the new court will affirm more death sentences as it works through a backlog of more than 170 capital cases. Among those cases are several in which the justices are reconsidering far-reaching rulings by the Bird court. Prosecutors said dozens of death penalty cases will be sent back for retrial unless the Bird court decisions are overturned.

In its first ruling in a capital case, the Lucas court last month unanimously overturned the death sentence of Edgar Morris Hendricks, citing “gross” procedural errors made by a Los Angeles trial judge.

In Thursday’s ruling, the court rejected about 26 issues raised by attorneys for Ghent contending that his death sentence should be overturned--including his contention that the state’s 1977 capital punishment statute violates international law.

The decision was welcomed by state Chief Assistant Atty. Gen. Steve White.

“The importance of the decision is that the court is recognizing that even in a well-tried case, there will be mistakes--but unless they result in unfairness to the defendant or in any respect undermine the clear finding of guilt, they do not require reversal,” he said.

Robert Carrow, a Mill Valley attorney representing Ghent, expressed disappointment with the ruling and said he would ask the court to rehear the case. Such rehearings are rarely granted and it is anticipated that an appeal next will be filed with the U.S. Supreme Court.

Series of Events

Ghent was charged following a series of events on Feb. 21, 1978. Prosecutors said he first attempted to rape Jacqueline Preskitt, a female acquaintance and house mate, and then went to the home of two other acquaintances, Paul and Patricia Bert, to seek help finding a job.

After Patricia Bert told him her husband was not at home, Ghent asked for his work telephone number. As he wrote the number on a pad, the woman’s robe fell open, revealing her naked body, the court’s opinion said. According to his own testimony, Ghent’s “next memory” was that he was standing over her nude body with a bloody knife in his hands.

Ghent did not deny the killing but claimed that he had acted without deliberation or premeditation.

Intent to Rape

He was convicted of assault with intent to rape Preskitt, and of the attempted rape and first-degree murder of Mrs. Bert.

But the jury deadlocked over whether the murder occurred during the course of the attempted rape, which would have made Ghent eligible for the death penalty. A second jury later found, however, that a capital crime had occurred and returned a death verdict against Ghent.

Lucas’ opinion was joined by Justices Edward A. Panelli, John A. Arguelles, David N. Eagleson and Marcus M. Kaufman. In separate opinions, Justices Stanley Mosk and Allen E. Broussard expressed some concerns about the procedures in the trial but agreed that the death sentence should be upheld.

Testimony Use Faulted

Among other things, the court agreed that testimony on Ghent’s mental state from a sheriff’s officer and a psychiatrist--who were present during an interrogation that occurred despite Ghent’s request for a lawyer--should not have been admitted at trial.

But their brief testimony “could not possibly have had a critical impact on the jury” in light of other evidence of the defendant’s mental condition, the court said.

The court also rejected Ghent’s contention that the prosecutor, in a reference to the impact of Mrs. Bert’s death on her family, had improperly sought to inflame the jury.

Lucas noted that while the U.S. Supreme Court recently had barred formal “victim impact statements” in the penalty phase of capital trials, the prosecutor’s remarks in this case were “brief and mild,” and that any prejudicial effect was “undoubtedly minimal or non-existent.”