Rulings in Death Cases Shift Court to the Right

At the state Supreme Court under former Chief Justice Rose Elizabeth Bird, staff members once jokingly warned each other not to say the “A-word”--a playful reference to the court’s well-documented reluctance to affirm death sentences.

In nine years, the old court approved capital punishment in four of 68 cases. But now, all that has changed. A more conservative court, led by Chief Justice Malcolm M. Lucas, took over last spring and has already affirmed death sentences in four of the six capital cases it has decided.

The new court has also moved quickly to overturn a 1983 Bird court ruling that otherwise might have forced retrials in at least 30 capital cases. It has also ordered an abrupt halt to a far-reaching inquiry the Bird court launched to see if the death penalty should be struck down as racially discriminatory.

The justices’ hard-nosed approach to capital punishment is but one clear sign that the court, as widely predicted, is undergoing an unmistakable shift to the right after the appointment by Gov. George Deukmejian of three new court members to replace Bird and two others defeated in the fall, 1986, election.

School Truants

On other fronts, the new court has upheld efforts to crack down on school truants, drunk drivers and uninsured motorists. It has also turned aside attempts to expand the legal protections against housing discrimination and to increase the penalties for job bias.

“The court has been giving the people pretty much what they wanted--a less ideological and more restrained judicial role,” said University of California, Berkeley, law professor Stephen R. Barnett, a court commentator and occasional critic. “With the exception of death penalty cases . . . I don’t see them reaching out to attain conservative results.”

As Barnett noted, it is the court’s record on the death penalty, the key issue in the bitter election campaign against Bird, that has provoked the most controversy thus far.

Prosecutors credit the new court for promptly establishing clear guidelines for the imposition of capital punishment and for refusing to order retrials for what they see as harmless procedural errors during trial.

As a result, they expect more and more death sentences will be upheld in the coming months, and that in the next year, California will witness its first execution since capital punishment was reinstated in 1977.

“This court has a healthy appreciation of the fact that there is virtually no case that cannot be said to have at least some minor or technical error,” state Chief Assistant Atty. Gen. Steve White said. “But the court is unwilling to say that because of such an error, the death penalty must be reversed. A year ago, that couldn’t have been said.”

Brush Aside

Defense attorneys and some commentators are dismayed by what they see as a disturbing tendency by the court to brush aside potentially significant trial errors in order to affirm the death penalty.

“Errors that before nobody would have even dreamed were harmless are now being written off by the court,” said Ephraim Margolin, president of the California Trial Lawyers Assn. of Northern California. “The result is that more people will die.”

Similarly, University of California, Davis, law professor John B. Oakley cited a “disturbing note” in the court’s opinions that suggests a reluctance to look closely at the quality of legal representation being received by capital defendants.

“The court may face a crisis of conscience when it has to confront the fact that the constitutionally required rules of procedure in capital cases have to be policed--either through reversals when the cases are appealed or through more careful scrutiny of how trial attorneys are appointed and their performances reviewed,” Oakley said.

The court signaled its new direction last March, little more than a week after the governor’s appointees, Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman, were sworn into office, replacing Bird and Justices Cruz Reynoso and Joseph R. Grodin.

At the new court’s first weekly closed conference, the justices voted to take the unusual step of reconsidering six of the Bird court’s last criminal law rulings. New rulings have not yet been issued in those cases.

The justices then began to attack a heavy docket of pending disputes, including about 175 capital cases that go to the court on automatic appeal. In October, they issued what has been the most significant decision of the Lucas court: a 6-1 decision in the case of James Phillip Anderson that resolved a number of important questions about the death penalty in California.

Death Penalty

In the Anderson case, the court reversed a controversial 1983 ruling that required that juries, before returning the death penalty, must find that a defendant accused of murder during commission of a felony intended to kill the victim. Prosecutors said that if the ruling had not been overturned, retrials would have been required in at least 30 pending capital cases.

The new ruling, written by Justice Stanley Mosk, was based largely on recent U.S. Supreme Court decisions that appeared to remove the doubt existing in 1983 that it would be constitutional to permit executions without a finding of intent to kill.

In the same case, justices also reversed a 1984 ruling that required the same finding of intent to kill in cases involving multiple murders.

But while removing the requirement in those instances, the court ruled that intent to kill must still be found when a defendant merely aids or abets in a felony murder but is not the actual killer.

In another part of the ruling, the justices agreed with a Bird court decision that struck down a requirement that juries must be told that if a defendant is sentenced to life in prison without parole--rather than death--the governor could still commute the sentence to life with the possibility of parole.

That provision had been struck down as misleading because it did not also inform jurors that the governor can commute a death sentence as well, and the Lucas court said it was grounds for reversing the death penalty imposed on Anderson.

Capital Cases

In other capital cases it has reviewed, the new court repeatedly has indicated that it does not intend to overturn death sentences because of procedural errors that it does not view as serious enough to have affected the jury’s verdict.

In the case of Oscar Gates, for example, the court voted 5 to 2 to uphold the death penalty, even though the jury had received what the dissenters considered to be highly confusing instructions from the trial judge on its duty to weigh aggravating and mitigating factors.

The judge explained that the law says jurors must be told they “shall” impose death if aggravating factors, such as a defendant’s prior criminal record, outweigh mitigating factors, such as a defendant’s disturbed mental condition. But he also tried to convey that this did not mean the jurors were to weigh such factors mechanically.

“You still can do what you want,” he said.

The justices also set aside an inquiry that had been ordered by the Bird court into whether the death penalty was being imposed discriminatorily in California. A finding that there was discrimination might have meant the demise of capital punishment in the state.

The new court, acting in the case of condemned killer Earl Lloyd Jackson, ordered an end to an investigation in which over $1 million had already been spent in a review of thousands of homicide cases to determine the validity of the claim that the death penalty was being sought more often when victims were white and assailants were black.

The justices cited a ruling by the U.S. Supreme Court last April rejecting the use of statistical data as a way to show race discrimination in capital cases.

Capital punishment was not the only area in which the court gave state authorities major victories. In other cases, the justices:

- By a vote of 4 to 3 upheld the constitutionality of police roadblocks to check for drunk driving.

- Unanimously approved the new state mandatory insurance law requiring drivers to prove that they have liability coverage or face loss of their operator’s licenses.

- Held 6 to 1 that police officers may stop and question young people they suspect are absent from school without good reason.

The justices also indicated that they will be far less likely than their predecessors to expand civil rights protections without express authority of the Legislature.

The new court unanimously ruled that mobile home parks may bar families with children, finding that the Legislature had granted such parks an exception to laws forbidding discrimination in housing. The court voted last week to reconsider the decision to see whether the law permits parks to bar adults under 25.

In another case, the justices, dealing a blow to the state’s civil rights agency, ruled 6 to 1 that state statutes did not permit the Fair Employment and Housing Commission to award punitive damages against employers for job discrimination.

Despite the court’s new direction, however, liberals have prevailed in some significant cases. For example, the justices:

- Unanimously ruled that the right to privacy protected a woman who brought suit claiming sexual harassment on the job from being questioned by opposing lawyers about her sex life.

- Held unanimously that even though they never won a final judgment in their favor, civil rights lawyers were still entitled to $40,000 in attorneys fees for obtaining a preliminary injunction preventing school officials from reporting pupils who were illegal aliens to federal immigration authorities.

- Ruled unanimously that Deukmejian exceeded his constitutional authority by vetoing part of a non-budget bill that expanded welfare benefits to families with dependent children. The court said that while the governor may use his veto power to eliminate specific appropriations in budget legislation, he could not do the same thing with general legislation.