Death Penalty That Bird Court Overturned Is Upheld for Killer

The state Supreme Court, reinstating a sentence that had been overturned under Chief Justice Rose Elizabeth Bird, upheld the death penalty Thursday for a man convicted in the 1978 killings of three USC film students.

The court held 4 to 3 that even though a new death sentence was erroneously imposed at retrial under a law that did not apply, the error could not have affected the jury’s death verdict against the defendant, David Leslie Murtishaw.

Murtishaw, now 31, was convicted in a bizarre and unprovoked shooting attack on the students as they were making a movie for their cinema class in the desert near Mojave in Kern County. Killed were Ingrid Etayo, James Henderson and Martha Soto. A fourth student, Lance Buflo, was wounded but escaped and summoned authorities.

Murtishaw’s case first came to the court in 1981, when the justices upheld his conviction but overturned his death sentence on grounds that the jury had improperly heard testimony from a psychologist who predicted that the defendant might kill again if he were sent to prison instead of the gas chamber.

Public Outcry

That decision caused a public outcry among critics of the court who later cited it in their bitter campaign against Bird and two other justices who were subsequently defeated in the 1986 election.

In Thursday’s ruling, the court majority acknowledged that Murtishaw’s penalty retrial was mistakenly conducted under the capital punishment law the voters passed in November, 1978. The trial judge instead should have followed the 1977 law enacted by the Legislature, because that was the one in effect at the time of the crime, the justices said.

But the court rejected Murtishaw’s claim that using the wrong law had improperly limited the jury’s discretion in deciding whether to return a verdict of death or the alternative sentence of life in prison without parole.

The justices, retreating from a previous ruling on the issue, held that while the wording of the two laws differed, there was no significant functional difference in the discretion they gave to the jury. Hence, they said, Murtishaw’s sentence will stand.

“We scrutinize the penalty phase of capital trials with considerable care, but even plain error must be deemed harmless when there is no reasonable possibility it affected the penalty verdict,” Justice David N. Eagleson wrote for the court.

In dissent, retired Justice John A. Arguelles, participating by special appointment, said that Murtishaw was entitled to a penalty trial under the applicable law and that his sentence should be overturned.

“Merely labeling the error as a ‘technical’ one, as does the majority, does not diminish the serious nature of the instructional mistake which occurred,” Arguelles said in an opinion joined by Justices Stanley Mosk and Allen E. Broussard.

Arguelles expressed puzzlement over how the trial judge could have allowed such an error to occur, but noted that “some blame must certainly be shared” by trial counsel for failing to alert the judge to the mistake.

In response to an inquiry, Appellate Justice William A. Stone of Fresno, who as a Kern County Superior Court judge had presided in the 1983 trial, said Thursday that he could not recall the circumstances that led to use of inapplicable law. He said, however, that to his best recollection, there had been no objection at the time from participating attorneys to use of the 1978 law.

David H. Schwartz, a San Francisco attorney representing Murtishaw in his appeal, expressed disappointment with the ruling and said he would ask the justices for a rehearing. If the rehearing is refused, the decision will be appealed to the U.S. Supreme Court, Schwartz said.

Thomas D. Sparks, Kern County chief deputy district attorney, said he was pleased with the decision and doubted that the high court would grant review. “This was one of the most egregious murder cases we’ve ever seen,” Sparks said. “Mr. Murtishaw richly deserves the ultimate penalty.”

The attack on the students occurred April 9, 1978, as they were making a film about a stranded motorist who shoots at a hooded figure of death before succumbing to thirst and heat.

According to authorities, Murtishaw and his brother-in-law had acquired two .22-caliber rifles and beer and then driven to the desert when their car broke down. They encountered the young film makers and asked for a ride to town. The students said they would comply when the day’s work was done.

But about 5 p.m., as the students prepared to leave, Murtishaw launched his murderous attack, defying his victims’ pleas for mercy, authorities charged. The next morning, Murtishaw turned himself in to police, claiming he had fired in the belief the students were firing at him with the gun used in the film.

At trial, his attorneys presented a defense of diminished mental capacity, arguing that Murtishaw suffered from brain damage and had acted under the influence of alcohol and the drug PCP. He was convicted and sentenced to death.

In July, 1981, the Bird court, in a 6-1 ruling, upheld the conviction but reversed the sentence. At the penalty retrial in 1983, the jury received instructions under the then-current capital punishment law that was enacted as an initiative in November, 1978. Again, Murtishaw was sentenced to death.

In his subsequent appeal, Murtishaw argued that the 1978 law was more restrictive on juror discretion and thus “manifestly less favorable” to his bid to avoid the death penalty.

The 1978 law tells jurors to compare the factors in the case that weigh against a defendant with the factors favoring the defendant. If the aggravating circumstances outweigh mitigating circumstances, the jury “shall” impose the death penalty, the law says.

The 1977 law had merely required jurors to “consider, take into account and be guided” by the aggravating and mitigating factors as they determined the verdict. The court majority rejected Murtishaw’s argument, finding that in receiving instructions under the 1978 law, the jury also had been told, as required by other high court decisions, that the weighing process is not a mechanical one and that jurors still retain the discretion to return what they believe is an “appropriate” verdict.

Even though the 1978 law was incorrectly applied, the jury was not misled about its discretion to grant leniency to the defendant if it wished, Eagleson said in a 61-page opinion joined by Chief Justice Malcolm M. Lucas and Justices Edward A. Panelli and Marcus M. Kaufman.

In their arguments to jurors, both the prosecution and defense had “made clear that the jury was to weigh the various sentencing factors as it chose and must ultimately decide for itself which penalty the defendant deserved under all the circumstances,” Eagleson said.