Rising Stream of Death Penalty Cases Threatens to Swamp State High Court

Despite its concentrated attack on a huge backlog of death penalty cases, the state Supreme Court still faces a stream of capital appeals that will contribute heavily to its workload, legal authorities say.

After a temporary decline, death judgments in California are back on the rise, coming to the high court for review at the fastest pace in five years.

And a report issued last week by the Commission on State Government, Organization and Economy said court administrators, prosecutors and defense attorneys now expect death sentences to approach a rate of 40 a year--matching the one-year high attained in 1981.

“The number seems to be going straight up,” said Michael G. Millman, director of the California Appellate Project, a nonprofit corporation that the California State Bar set up to assist lawyers in death penalty cases. “Even though the court is working very hard to deal with these cases, its burden is going to continue for some time to come.”

Prosecutors in counties that account for most of the state’s death cases said there is no conscious effort to bring more capital prosecutions. Such decisions, officials said, are governed by the facts and circumstances of individual cases. They also said that the new conservative shift on the high court plays no formal role in deciding whether to seek the death penalty.

Possible Reluctance

But some authorities acknowledged that prosecutors may have been inhibited from bringing capital cases in the past because of the strong likelihood that a death sentence would be overturned by the high court under former Chief Justice Rose Elizabeth Bird. They said the new court’s abrupt reversal of that trend may be providing at least subconscious encouragement to bring death charges now.

Under Chief Justice Malcolm M. Lucas, the court has affirmed death judgments in 41 of 56 capital cases it has decided. Under Bird--who was defeated with two other court members in a bitter 1986 election campaign focusing on the death penalty--the court upheld only four death verdicts in 68 cases.

“At the time so many verdicts were being reversed, there was an often-expressed sentiment among prosecutors that it wasn’t worth charging the death penalty because a tremendous amount of time and money would be for naught,” said state Chief Assistant Atty. Gen. Steve White. “Now prosecutors have in mind the fact that if a person gets a death judgment, that person probably will be executed.”

If death sentences continue to rise, one influencing factor may be what some prosecutors and defense attorneys sense is a greater willingness by jurors to vote for the death penalty instead of the alternative, life in prison without parole.

“Jury attitudes have definitely changed over the last few years,” said Assistant Dist. Atty. Curt Livesay of Los Angeles County. “Jurors today, generally representing a cross-section of the community, are more likely to vote for the death penalty than in the early ‘80s. They’re aware of the crime and violence in society and they’re fed up with it.”

More Conservative Attitudes

In Alameda County, where 23 capital cases are pending, Dist. Atty. John Meehan said: “This is a fairly liberal county and it used to be that even in an egregious case, there was only a 50% chance of getting a death verdict. . . . Now I’d say there was a 70% chance.”

In Orange County, Chief Deputy Dist. Atty. James G. Enright said he sees more and more cases involving killings during commission of a felony--a crime that qualifies for the death penalty. “We now are seeing more execution-style killings, performed with the intention of getting rid of witnesses,” he said.

Nonetheless, some defense attorneys and other legal authorities--including one member of the high court itself--are calling on prosecutors to exercise more discretion in bringing capital charges, fearing both an overload on the system and an increased risk of unjust penalties.

“From what I see, in this county there’s no exercise of prosecutorial discretion at all,” said Stuart R. Rappaport, public defender in Santa Clara County, where 14 capital cases are awaiting trial. “It’s a kind of inflation. Murder cases are being pushed into the death penalty without justification.”

Rappaport, who specialized in capital cases in a previous post in the Los Angeles County Public Defender’s office, cited as an example a decision by Santa Clara authorities to seek death in the penalty retrial of Lynn Bernard Milner, whose death sentence was overturned earlier this year by the state Supreme Court.

Milner was 19 and had no criminal record when he killed a Sunnyvale clothing store manager during a robbery in 1980. “It’s ludicrous to ask for the death penalty again in a case like this, “ Rappaport said.

State Supreme Court Justice Stanley Mosk recently urged that prosecutors be more prudent in bringing capital charges--such as in a case where several defendants bear virtually the same responsibility for the crime but only one ultimately faces the death penalty.

“A little more careful use of prosecutorial discretion is sometimes called for,” Mosk said at a meeting of the California State Bar.

56 Rulings in Year

When Lucas became chief justice in early 1987, there were 171 capital cases before the court. Since then, the justices have worked hard to reduce the backlog, issuing an unprecedented 56 rulings in little over a year.

But as death verdicts continue to come to the justices for review, there were still 174 cases pending as of last week--representing nearly half of the court’s total docket.

Capital punishment was reinstituted by the Legislature in 1977 and its scope was broadened to include more crimes in an initiative passed overwhelmingly by the voters in 1978.

Under the law, a defendant convicted of first-degree murder can be sentenced to death or life without parole if any of 19 “special circumstances” are found true.

These circumstances include multiple murder, killing a witness to prevent testimony or killing a victim during a robbery, kidnaping or other violent crime.

Prosecutors’ Discretion

Prosecutors have considerable discretion in whether to seek the death penalty in such cases. Generally, in larger jurisdictions, the decision is made by the district attorney--or by another key prosecutor in consultation with others.

In this process, certain guidelines are applied--such as the defendant’s previous record, his intent in committing the crime and the weight of the evidence.

Capital charges are brought in relatively few of the approximately 3,000 willful homicides that occur each year in California.

And, after a laborious trek through the criminal justice system that may take up to two years, death verdicts are rendered in relatively small numbers.

Over the years, the number of death sentences imposed annually in the state rose to a high of 40 in 1981, then dropped to 37 in 1983 and to a low of 18 in 1985.

But since then, death verdicts have been on the rise, reaching 27 in 1986, 29 in 1987 and, already, 25 through August of this year, according to the California Appellate Project.

The project’s Millman pointed out that even the slightest increase in capital cases in individual counties can result in a cumulative increase statewide that in turn places a heavy burden on the high court.

That burden would be much more manageable, Millman said, if prosecutors were to seek the death penalty only under the scope of the 1977 capital punishment law enacted by the Legislature, rather than the 1978 initiative, which expanded the number of “special circumstances” in which death may be sought.

UC Berkeley law professor Stephen R. Barnett calculated that even if the court continues its rapid pace of decisions--and the rate of death judgments does not increase substantially--it will still take eight years to clear its capital backlog.

“The court probably can’t continue at its present rate and I don’t think it should,” Barnett said recently. “It threatens the quality of its work in other cases, as well as death penalty cases themselves.”

Barnett’s view was contradicted in part last week by Chief Justice Lucas, who said in a news conference that he does not expect a “7- to-11-year period” before the backlog can be eliminated. But the chief justice did not say when he thought the backlog would be cleared.

Continued Speculation

After the departure of Bird and two other liberal justices from the court, there has been continued speculation that prosecutors would bring more capital cases.

Prosecuting attorneys in larger communities said the rate at which charges have been brought has remained the same or increased only slightly in recent months.

But in Los Angeles County, which accounts for approximately one-third of the death sentences in the state, the death penalty has been sought in 31 cases already this year--compared to 31 cases in all of 1987 and 32 in 1986. The previous high was 63 cases in 1982.

Livesay, like other prosecutors, said the prospect of an affirmance by the high court is not a formal consideration in deciding whether to seek death. “We screen, file and prosecute based on what the law and facts are and not our guess as to what the Supreme Court might do,” he said.

‘Inhibiting Effect’

In San Diego County, Dist. Atty. Edwin L. Miller recalled an “inhibiting effect” on capital prosecutions during the Bird court era, but said the decision to bring the charge is still based on the circumstances of individual cases.

“If there is a decision to bring more death penalty cases, it is a subconscious decision,” Miller said. “We try to apply the same criteria in filing these cases as we did before.”

Prosecutors also said that it is difficult to make precise predictions about capital prosecutions because of the unpredictable nature of the crimes themselves.

For example, in San Diego, which previously had experienced about 100 homicides a year, killings currently are occurring at a rate of 150 a year. “By the end of the year, we’ll break all records,” Miller said.

“These things appear to be cyclical,” said Santa Clara County Assistant Dist. Atty. Dave Davies.

“How can you know when one person is going to execute two or three others or is going to murder an elderly woman for what he can get out of her purse? There’s just no way to predict these things.”

DEATH SENTENCES IN CALIFORNIA These are fluctuations in annual death sentences in California since restoration of capital punishment, according to figures compiled by the California Appellate Project, a nonprofit corporation established by the State Bar to assist lawyers in capital cases.

1978: 7

1979: 20

1980: 24

1981: 40

1982: 39

1983: 37

1984: 29

1985: 18

1986: 27

1987: 29

* 1988: 25

* Through August