Bar Release of ‘Onion Field’ Killer, Court Urged

The state Supreme Court, hearing one of the most controversial cases on its docket, was urged by prosecutors Wednesday to bar the release on parole of Gregory Ulas Powell, the “Onion Field” killer.

The justices were asked to reverse a December, 1986, ruling by the court under former Chief Justice Rose Elizabeth Bird holding that the state Board of Prison Terms had improperly rescinded a release date given earlier to Powell.

Prosecutors argued that parole authorities should be given wide discretion to protect public safety and that a court should not intervene unless there is no legitimate evidence at all to support their actions.

“Certainly, there is a duty on the part of the board to be fair,” said Los Angeles County Deputy Dist. Atty. Patrick Moran. “But it also has an overwhelming responsibility to the public not to release a dangerous person into society.”

Powell’s attorney, Dennis P. Riordan of San Francisco, contended that the prosecutors were asking the court to give the board “carte blanche” to withdraw parole dates without being subject to any meaningful judicial review.

“The parole board must not be given absolute discretion,” Riordan said. “Anytime you give a governmental agency absolute power, it is corrupted absolutely.”

The highly publicized case, the subject of the best-selling novel “The Onion Field” by Joseph Wambaugh, emerged from the kidnaping and murder of Los Angeles Police Officer Ian Campbell in 1963. Powell and a confederate, Jimmy Lee Smith, were convicted and sentenced to death. But under a 1972 court ruling, their sentences were reduced to life in prison.

Smith was paroled in 1982 and Powell was to be released in 1983. But a year before, in the wake of protests by public officials and others, the board rescinded its plan to release Powell.

The board cited a new psychiatric report concluding that he might still be dangerous and also found that in previously finding him fit for parole, it had not given sufficient consideration to his attempts to escape prison while he was on Death Row in the late 1960s.

Later, a Solano County judge struck down the board’s rescission order as invalid. The Bird court agreed, ruling 4 to 3 that Powell was entitled to release because the board lacked “substantial evidence” for its action.

The court, in a decision issued less than a week before Bird and two others who were defeated in the fall election left office, said that the psychiatric report had been based in part on discredited allegations of Powell’s sexual misconduct in prison and that, despite his previous escape attempts, he had been an “exemplary” prisoner after his death sentence was set aside.

But then last March, with three new appointees of Gov. George Deukmejian then in office, the new court voted to reconsider the old court’s decision. Meanwhile, Powell remains in prison.

In Wednesday’s hourlong arguments, state Deputy Atty. Gen. Dane R. Gillette contended that the old court had set the wrong standard for review of rescission actions by the parole board. Courts should stay out of such matters unless the board acts “without information, fraudulently or on mere caprice,” he said.

The board was entitled to rescind parole on the basis of new evidence of Powell’s mental deterioration and in reconsideration of his escape attempts, Gillette said.

“If the board is not acting arbitrarily, then its decision must be upheld,” he said.

In another case argued Wednesday, the court was asked to strike down a state law that makes it a crime to loiter at a public restroom for the purpose of engaging in or soliciting lewd conduct.

Jay M. Kohorn of Redondo Beach, the lawyer for a group of defendants charged under the statute, contended that the law was unconstitutionally vague, infringed on personal freedoms and opened the way for discriminatory arrests by police.

“How can (police) infer that one is lingering for that purpose?” Kohorn asked.

But Santa Clara County Deputy Dist. Atty. Joseph V. Thibodeaux defended the law, saying that its terms and purpose were clear and that police, under previous court decisions, could properly infer intent to violate the law from overt acts by suspects--such as the touching of the private parts of others in the restroom.

Under close questioning by the justices, the prosecutor conceded that such overt acts were grounds for prosecution under other laws and that to that extent, perhaps, the loitering statute at issue was “redundant.”

“But there is no constitutional problem with the Legislature putting two statutes on the books that cover the same situation,” Thibodeaux said.

Decisions in both cases are expected next year.