Broaden Death Penalty, State Prosecutor Urges Court

A state prosecutor, relying on a recent U.S. Supreme Court ruling, argued Wednesday that the California Supreme Court should permit the execution of convicted killers even if there was no finding that they intended to kill.

State Deputy Atty. Gen. Pat Zaharopoulos urged the justices to permit the death penalty for actual killers in such circumstances, following an April federal high court decision allowing executions for major accomplices in a fatal crime who act with “reckless indifference to human life,” even if they do not intend to kill.

“In fairness, an actual killer should not be put in a better position under the law than an accomplice,” Zaharopoulos said.

On the other side, Barry L. Morris of Oakland, an attorney representing the convicted defendant in the case before the court, argued that the federal ruling “has no impact here” because it involved accomplices and Arizona law, not actual killers and California law.

Morris urged the justices to reaffirm a 1983 ruling by the court under then-Chief Justice Rose Elizabeth Bird requiring intent to kill in capital cases. The justices had based that ruling in part on a decision the year before by the U.S. Supreme Court that they thought could bar as unconstitutional the execution of anyone who did not intend to kill.

State prosecutors in recent months have urged the new and more conservative California court to reverse the 1983 ruling, saying it was wrongly decided and could ultimately force penalty retrials in more than two dozen capital cases. Already, 14 other death judgments have been reversed under the 1983 decision.

On Wednesday, the justices heard oral argument for the third time in the case of Bernard Lee Hamilton, convicted of kidnaping, robbing, stabbing and dismembering Eleanore Frances Buchanan in 1979 in San Diego. A ruling is expected by early next year.

The Bird court reversed Hamilton’s death sentence in 1985 because the jury had not been instructed that it must find he intended to kill. The court found that even though the woman’s hands and head had been cut off, it was possible that death had occurred accidentally and that the body later was mutilated to prevent identification.

Later, the U.S. Supreme Court told the state court to reconsider the case in light of a high court ruling that a murder sentence need not be overturned simply because a jury was improperly instructed.

The state court heard argument again in September, 1986, but was unable to decide the case before the departure in January of Bird and two other justices defeated in the fall election.

In Wednesday’s hourlong hearing, Morris argued that intent to kill could not be inferred from the condition of Mrs. Buchanan’s body.

“Can you conceive that somehow the head and arms were cut off accidentally?” Justice Stanley Mosk asked.

“No,” Morris replied. “But frankly, it would be a very unlikely method of killing someone.”

Zaharopoulos said that even without the jury’s finding that Hamilton intended to kill his victim, it was obvious from the facts of the case that he was a “major participant” in the crime against the woman and that he acted in “reckless indifference to human life.”

Mosk and Justice Allen E. Broussard closely questioned the state prosecutor on the relevance of an Arizona case concerning accomplices to a California case involving actual killers. Both noted parenthetically that California statutes require intent to kill by accomplices.

But Justice Edward A. Panelli interjected to help clarify the point being made by Zaharopoulos: “You’re arguing that we should require less (to uphold a death sentence) for an actual killer than we would require for an accomplice.”

“Exactly,” she replied.