High Court Won’t Rubber-Stamp Death Penalties

The California Supreme Court, which had one of the nation’s highest reversal rates for death sentences when liberals were in the majority, now is well below the national average.

That should not surprise anyone who remembers the 1986 elections, when Chief Justice Rose Elizabeth Bird and two colleagues were voted out of office mainly over death penalty reversals. But what may surprise some members of the public is that the new, conservative-dominated court is still finding errors in a substantial number of death penalty cases.

The court, under Chief Justice Malcolm M. Lucas, has overturned 19 of 66 death sentences, or 28.8%, since appointees of Gov. George Deukmejian gained a 5-2 majority in March, 1987. Sixteen of the 19 were unanimous.

The Bird court, in about seven years of death penalty rulings, reversed 64 of 68 death sentences, or 94.1%.

The average for death sentence reversals by all state courts is about 41% since 1976, when the U.S. Supreme Court upheld death penalty laws in a number of states, said the NAACP Legal Defense Fund Inc., which tracks capital cases. The reversal rate for 1988 was 40%.

The report also showed that some Southern states have had 12-year reversal rates much higher than that of the current California court, even though nearly all of the post-1976 executions have been in the South. For example, Mississippi courts have overturned 51.58% of the death sentences, Florida 45.87% and Alabama 47.31%. The lowest reversal rate listed was 9.43% in Virginia.

Other Factors at Work

The figures suggest that death penalty reversals are affected by other factors besides the ideology of a state’s highest court, such as the relative ease or difficulty of getting a death sentence at trial, the quality of trial judges and lawyers and the peculiarities of a state’s law.

Defense lawyers say that many of Florida’s reversals, for instance, involve cases in which a judge has imposed a death sentence over the jury’s objections, an option that does not exist in California.

The statistics do not include later reversals of state court rulings by federal courts. Lawyers say that 40% to 50% of state death sentences in the last decade have been set aside by federal courts, which have yet to review any substantial number of California cases.

The California figures, on the other hand, support the view that a conservative court is much more likely to uphold a death sentence than is a liberal court. But the statistics, and examinations of individual cases, also indicate that the Lucas court has not entirely repudiated the Bird court’s work.

For example, the most frequent reason for reversals by the current court, cited in seven cases, has been a judge’s instruction to jurors that the governor has the power to commute a life-without-parole sentence, the alternative to death. That instruction was ruled invalid by the Bird court in 1984 and the Lucas court has followed that ruling, while narrowing it somewhat.

The justices have also followed a Bird court precedent in reversing three death sentences because the prosecutor told jurors that they could put their moral convictions aside, or allow “the law” to replace their personal judgment, in deciding on a sentence. In other cases, however, the current court has given prosecutors considerable leeway in jury arguments.

Other Lucas court reversals have involved errors that, in hindsight, looked obvious. In two cases, trial judges failed to hold hearings on a defendant’s mental competency, after a hearing had been previously ordered. One judge neglected to hold a sanity hearing, sent the jurors home, and then recalled them after a second jury had deadlocked on sanity. In another case, the defense lawyer’s representation of another client in a civil case inhibited his questioning of a key prosecution witness.

The gap between the two courts can be attributed partly to philosophy, but lawyers on both sides of the issue see other reasons. One is that many Bird court rulings involved trials soon after the passage of the current death penalty law, a broadly worded 1978 initiative.

“It’s my suspicion that any state court system at the start will probably be reversing more than it’s affirming, only because it’s setting the parameters and defining the issues,” said Deputy Atty. Gen. Dane Gillette, death penalty coordinator for the state Department of Justice.

‘Past the Early Bugs’

“Now, trial courts are past the early bugs in the system and should know how to do it right, and you would expect to see a larger number of affirmances.”

Michael Laurence, director of the Death Penalty Project of the American Civil Liberties Union of Northern California, generally agreed.

“The fact that we are getting many affirmances now can be due to the Bird court’s reversing a case several years in the past,” forcing trial courts to change their procedures, Laurence said.

One point of comparison between the old and new California courts is the six death sentences reversed by the Bird court and then granted reconsideration by new court appointees before the rulings became final. Five of the six sentences have been upheld by the Lucas court.

Much of the difference between the two courts’ rulings in capital cases can be traced to a single ruling, a 1987 decision by the Lucas court that intent to kill was not required for most death sentences.

Question of Intent

Bird court decisions in 1983 and 1984, reading an intent-to-kill requirement into the death penalty law, were the court’s most frequent reason for reversing death sentences. One justice who had joined those rulings, Stanley Mosk, shifted his stance and wrote the 1987 decision; the sole dissenter was Justice Allen E. Broussard, author of the earlier decisions.

The other major difference between the two courts is more subjective and involves the concept of “harmless error,” flaws in a trial that a reviewing court concludes were not serious enough to overturn the verdict. The Lucas court has applied that concept far more broadly than the Bird court.

In perhaps the most striking example, the current court concluded that the jury may have been misled into disregarding the evidence against a death sentence offered by lawyers for Billy Ray Hamilton, convicted of a triple murder in Fresno. But over Broussard’s dissent, the court ruled the error was harmless because none of the evidence would have persuaded a reasonable juror to vote for a life sentence.

Gillette said the current justices, six of whom are former longtime trial judges, have “a more practical approach” than the former court, and are “less willing to assume that jurors are automatically influenced by every erroneous thing that occurs.”

‘Institutional Bias’

In the Bird court, he said, “there may have been an institutional bias against the death penalty” and therefore a greater willingness to find errors to be grounds for reversal.

The ACLU’s Lawrence said the justices look at a terrible murder and may not be able to conceive how a juror, regardless of errors in the trial, could have imposed any sentence other than death. “But that’s the role of an appellate court,” he added.