Rose Bird’s Opponents Elated by Death Ruling

Opponents of ousted California Chief Justice Rose Elizabeth Bird were victorious again Tuesday--months after they unseated her and two liberal colleagues at the polls--when a reconstituted court rolled back the Bird court’s biggest decision limiting the death penalty.

“I am extremely pleased,” said Kern County Dist. Atty. Edward R. Jagels, who headed the largest group trying to unseat Bird. “There is no question that this decision would not have taken place but for the success of the campaign, because the Bird majority would be intact.”

Former Gov. Edmund G. (Pat) Brown, honorary chairman of a group formed to back Bird and the defeated justices, said that, as a death penalty opponent, he is disappointed, but not surprised, by the decision.

“It was the death penalty that defeated her, beyond question,” he said of Bird, and Tuesday’s decision was “beyond question” a victory for the pro-death penalty forces who campaigned against her.

Tuesday’s decision came as a more conservative state Supreme Court voted 6 to 1 to permit executions of people who kill in the course of committing serious crimes such as robberies, even if there is no proof that they intended to kill.

Broussard in Dissent

The only dissent came from Justice Allen E. Broussard, author of the 1983 decision that was overturned, which had required prosecutors to prove an intent to kill.

Jagels, former chairman of the steering committee of Crime Victims for Court Reform, said that the standards of proof required by the 1983 decision have meant that “hundreds, maybe even thousands” of California criminals who would have been subject to the death penalty or life imprisonment without possibility of parole, instead have the possibility of parole.

Jagels said prosecutors in California handle a “huge number” of murder cases that will be affected by Tuesday’s decision.

He said these involve murders committed during felonies in which an intent to kill cannot be proven because the only witness is the defendant, the victim is dead and the defendant says he didn’t mean to do it.

“(Prosecutors) need a chance to take all the circumstances to the jury and say it does not technically matter whether or not (the defendant) had the intent to kill,” Jagels said.

But Ephraim Margolin of San Francisco, founder of the California Attorneys for Criminal Justice, a statewide defense lawyers group, said: “We think that to sentence to death a person as to whom the jury can find no intent to kill is to carry capital punishment into areas way, way removed from what the public ought to accept. . . . There is a danger of going overboard. This decision is bringing us closer to blood bath.”

Broussard in his dissent on Tuesday seemed to conjure up the bitter campaign to unseat Bird, in which the key issue was her never having voted to impose the death penalty.

“Periodically,” he wrote, “when the political winds gust in a new direction, it becomes necessary to remind all concerned of the virtues of a steady course.”

He appeared to be suggesting that his colleagues may have been influenced by the voters’ emphatic 2-to-1 repudiation of Bird.

But that idea was immediately rejected even by some Bird supporters.

John Emerson, one of the architects of Brown’s committee to retain Bird and now chief deputy city attorney for Los Angeles, said he backed Bird because he wanted to maintain an independent judiciary that would hew to the law rather than public whims.

He said he believes that the current justices acted on Tuesday “consistently with their judicial theories and interpretations of the law.”

Kevin Brett, a spokesman for Gov. George Deukmejian, said the governor was “pleased that a major impediment to the implementation of the death penalty law has been removed.”

He too rejected any suggestion that the court had been politicized. “The decision should not be seen on the basis of ideological grounds,” Brett said. “Instead it should be seen as a victory for common sense and the law.”