Initiative Seeks to Put State in Mainstream of Justice

Just seven years ago, California voters approved a major change in the state’s criminal law, passing Proposition 8, a broad-ranging anti-crime initiative known as the Victims’ Bill of Rights.

Among other things, the measure mandated stiffer sentences for repeat offenders, allowed a wider use of evidence against criminal defendants and gave victims new rights to restitution and to appear at parole and court proceedings.

Nonetheless, critics of the criminal justice system remain dissatisfied, and now they are appealing once again to the electorate--this time with another initiative, the Crime Victims Justice Reform Act, which authorities say could result in even more sweeping changes in the legal process.

Backers of the measure are fueled by what they see as unwarranted delay in the system that denies swift and sure justice and adds to the burden of victims who must testify repeatedly in protracted proceedings. The 18-month preliminary hearing in the McMartin preschool child-molestation case and the four-month jury selection in the Hillside Strangler trial of Angelo Buono are two frequently cited examples.

Widespread Support

At this point, chances appear good the initiative will be approved. Supporters said recently that they already have obtained nearly 1 million signatures--almost double the number required for a place on the June, 1990, ballot.

Oddly, up to now most of the debate on the measure has been focused on a provision opponents say would weaken the right to abortion--an allegation staunchly denied by backers. But that controversy has obscured the much wider impact the measure could have on California criminal law.

Most notably, the initiative would require that state courts follow federal rulings in determining criminal procedural rights. State judges would be allowed to grant defendants no greater protections than the generally less-expansive rights mandated by the U.S. Supreme Court under the federal Constitution.

Also, the death penalty would be expanded to cover more types of killings, and juveniles 16 or 17 who commit murder would be subject to life in prison without parole. Pretrial proceedings, including jury selection, would be sharply revised in an attempt to speed the process. And several new procedures would be adopted to ease the burdens of crime victims, allowing them to appear less often in court.

Although there is strong debate over the merits of the measure, there is little doubt that it will result in profound change if enacted--most fundamentally in its broad new deference to more-restrictive federal standards on defendants’ rights.

In past years, the California Supreme Court was at the forefront of a movement to expand rights of individuals beyond federal requirements. But under the initiative, perhaps a dozen state high court rulings would be overturned or substantially limited, authorities say.

Central Issue Cited

“Cutting back on the constitutional rights of those accused of crime may or may not be a good idea--but that ought not to be the only issue,” said Jesse H. Choper, dean of the Boalt Hall law school at UC Berkeley. “We also should be looking at the question of whether California should be able to go its own way, with an independent state judiciary, or be bound by the rulings that emanate from the U.S. Supreme Court.”

Backers say that despite Proposition 8 and a dramatically realigned state high court that has upheld dozens of death sentences in recent months, the new initiative is needed to finish the job of reforming the system.

For decades, they say, the previous court under Chief Justice Rose Elizabeth Bird used the state Constitution to fashion radical and unwarranted protections for defendants--and the Legislature did little about it. Although the new court has overturned or limited some of those rulings, its traditional respect for judicial precedent has stymied further change, proponents say.

“The chief aim of the initiative is to bring California’s criminal justice system back into the American mainstream,” Kern County Dist. Atty. Ed Jagels, chairman of the Crime Victims’ California Justice Committee, said in an interview. “We took what we considered were the best aspects of the federal system and the law in other states and wrote them into our measure.”

Opponents, led by defense attorneys, contend that the initiative would prove burdensome on the courts, costly to the taxpayers and unfair to criminal defendants. The measure, they say, is merely a grab bag of proposals the Legislature would not accept. If it is enacted, opponents add, it will be subject to widespread constitutional challenges in the courts for years.

Michael Rothschild of Sacramento, vice president of California Attorneys for Criminal Justice and leader of a new group opposing the initiative, calls the measure “most repressive” for its elimination of state-guaranteed rights that for years have set California apart from the rest of the nation.

Rothschild believes that oversimplified claims by proponents may mislead voters into passing an exceedingly complicated measure they know little about.

“People are basically intelligent but there are some very detailed, very complex parts of this initiative that cannot be described in 30-second sound bites,” said Rothschild. “If the Legislature, which is basically conservative and certainly not pro-defendant, has rejected these things for the past five years, that ought to tell us something. . . . If this thing passes, I fear for the people, as well as the system.”

The initiative contains dozens of provisions, but the following emerge as its most important in scope.

DEFENDANTS’ RIGHTS

This section would limit defendants’ rights to those afforded by the federal Constitution in a broad field of law. In all, 12 separate rights are involved, ranging from equal protection, due process and assistance of counsel to guarantees against unreasonable searches and cruel and unusual punishment.

As a result, a number of state high court rulings establishing more expansive rights would be cast aside in favor of federal interpretations of the law. Analysts say the way would be clear, for example, for the revival of capital charges for “especially heinous” murders, a provision struck down by the state high court in 1982 as a violation of the state constitutional due-process clause.

Critics of the measure are seriously concerned over what they see as the breathtaking scope of this provision. While the 1982 anti-crime initiative eased the state’s judicially imposed restrictions on the types of evidence that can be used against defendants, this measure broadly redefines defendants’ rights, they say.

Problem Here Called Severe

“This is a wholesale giving up of any independent viability of the procedural rights under the state Constitution,” said Santa Clara University law dean Gerald F. Uelmen. “This goes well beyond Proposition 8.”

Backers acknowledge the provision represents an unparalleled effort to recast criminal law, one that apparently has not been made in the initiative process in any other state in recent times. “Other states don’t have as severe a problem as we do in California,” said Los Angeles Deputy Dist. Atty. Albert H. MacKenzie. “We’re basically trying to enact what already exists elsewhere.”

Abortion Link Raised

The 12 rights limited by this section of the initiative include a defendant’s right to privacy--a provision that in itself has set off a politically charged debate over its potential effect on the right to abortion.

Opponents say that if the U.S. Supreme Court overturns its landmark 1973 decision in Roe vs. Wade, which recognized a federal right to privacy in obtaining an abortion, it would effectively restrict California’s constitutional right to privacy--and, with it, the right to abortion. Thus, they say, the way could be opened to prosecutions under currently unenforceable abortion laws or statutes enacted in the future.

Backers reply, however, that the initiative is clearly aimed at criminal defendants and does not seek to criminalize any conduct not already prohibited under valid statutes. The privacy provision is meant to cover cases involving the surveillance of criminal defendants and is intended to limit a 1982 Bird Court decision recognizing a right of jail inmates to privacy in jailhouse conversations, initiative supporters say.

Candidates Get Involved

Although the provision amounts to only two words--”to privacy”--among thousands in the initiative, it has stirred a lively dispute between two candidates for governor in 1990, Democratic state Atty. Gen. John K. Van de Kamp and Republican U.S. Sen. Pete Wilson.

Van de Kamp says the provision jeopardizes abortion rights and, although he favors the initiative generally, he refuses to support it as long as it contains that provision. Wilson, a prime backer of the measure, replies that it presents no threat to abortion and that there is no need to revise the initiative. Now, Van de Kamp says he will place the initiative, without the privacy provision, in a measure he plans to put on the November, 1990, ballot that would create a “superfund” to fight the drug problem. Thus, if both measures were approved, the Van de Kamp version, as the superseding measure, would ultimately become the law of the state.

DEATH PENALTY

The measure, overturning several state Supreme Court decisions, would prevent trial judges from dismissing a capital charge, known as a “special circumstance,” that has been found by a jury; would expand the death penalty to include intentional murder of a witness to prevent testimony in a juvenile proceeding; and would widen capital punishment to cover murder committed during a kidnaping, train-wrecking, sodomy, oral copulation or rape by instrument.

The initiative, adopting a recent U.S. Supreme Court decision, also would permit the death penalty for an accomplice who is a “major participant” in a felony-murder and acts with “reckless indifference” to human life. Up to now, the state high court has barred the death penalty for an aider and abettor without proof of intent to kill.

JUVENILE KILLERS

Although not permitting the death penalty in such crimes, the measure would allow sentences of life without parole for 16- or 17-year-olds who commit murders for which adults could face execution.

TORTURE

The initiative would establish the crime of torture, punishable by life in prison. The provision is a response to the controversy over the case of Lawrence Singleton, who was paroled after serving only eight years--the maximum sentence for mayhem--for using an ax to sever the forearms of his 15-year-old female victim.

PRETRIAL EVIDENCE

The measure would revise a courtroom rule by which the prosecution must reveal its evidence to the defense before trial but the defense need reveal little of its case. Under the initiative, the prosecution would be able to learn the names and addresses of defense witnesses sooner--enabling prosecutors to better investigate alibis--and to receive written statements made by witnesses to defense investigators and physical, scientific and psychiatric evidence the defendant intends to offer at trial.

PRETRIAL DEADLINES

Judges would be required to set a trial date within 60 days of a defendant’s arraignment, unless there were good cause not to do so. In addition, to be assigned to a case, public defenders and court-appointed private counsel would be required to attest that they would be prepared to proceed on the date set for a preliminary hearing or trial. If they failed to be prepared, without good cause, they could be removed from the case, found in contempt, fined or denied public-funded compensation. In complicated cases, additional time would be allowed.

GRAND JURY INDICTMENTS, PRELIMINARY HEARINGS

The measure would overturn a landmark 1978 decision by the state Supreme Court that gave those defendants indicted by a grand jury a new right to a post-indictment preliminary hearing. In such hearings, defendants are generally much better able to challenge the charges against them.

The initiative also makes major changes in the preliminary-hearing process itself--the process used in the hundreds of thousands of cases in California in which defendants are charged directly by prosecutors, rather than through grand juries.

The measure would eliminate the current requirement that victims and other witnesses appear at preliminary hearings where they can be cross-examined by defense counsel. Instead of having witnesses themselves testify at preliminary hearings, investigating officers would be allowed to present hearsay testimony on what they were told by the witnesses. This revised process would greatly speed proceedings and ease the burdens on witnesses, supporters say.

JURY SELECTION

In another attempt to speed the process by following the federal system, the initiative would direct judges to take the lead role in questioning prospective jurors--a task that now is largely in the hands of attorneys and, in some instances, has taken weeks or even months. The measure also limits the scope of such interrogations and abandons a 1980 state Supreme Court decision requiring that jurors in capital cases be questioned separately and apart from others--another time-consuming process.

Not surprisingly, there is considerable disagreement over whether the measure would help--or harm--the criminal justice system.

Backers of the measure say that the proposed new procedures not only would speed the process but also would ease the burdens on victims and other witnesses who spend agonizing months and years awaiting the end of a case. The 1982 initiative gave victims the right to restitution and to attend parole and court hearings, but they still are called upon for repeated appearances on the witness stand, forcing them to lose additional time from work and endure other personal pressures.

Los Angeles prosecutor MacKenzie notes, for example, that in a recent complex probate fraud case, witnesses were required to testify first before a grand jury, then at a preliminary hearing and finally--four years after the case began--at trial. “In every federal court in the nation and in 47 states, you can go first to the grand jury and then right to trial . . . but not in California,” he said.

Hearings Called Mini-Trials

MacKenzie cites also the unusual length of some preliminary hearings--proceedings that too often become full-dress “mini-trials.” He notes that the hearing in one recent insurance fraud case in Los Angeles took eight months. “It’s absurd,” he said.

But defense attorney Rothschild contends that stricter deadlines and other limits on pretrial proceedings place unfair pressures on lawyers and defendants. Lengthy preliminary hearings, he argues, are actually an exception to the rule. “You can always find a horror story like the McMartin case or the Hillside Strangler case, but those are a rarity,” he said.

And in any event, he said, they provide defendants with a rightful opportunity to challenge erroneous identifications and other faulty evidence that could result in wrongful conviction.

“That’s why we have a preliminary hearing,” he said. “That’s what makes us different from the Soviet Union.”

Greater Court Burden Seen

Law dean Uelmen predicts the limits on preliminary hearings actually would result in greater burdens on the court system. At present, he notes, defendants get a full opportunity to test the prosecution’s case at such proceedings--and more than 90% of the time elect to plead guilty without going to trial. By contrast, in the federal system, where hearings are limited, only 75% plead guilty, he said.

Uelmen contends that if California alters its system to follow the federal system, it will need to conduct five times as many trials--which in turn would require five times as many courtrooms, judges, prosecutors and public defenders.

In response, prosecutor Jagels said he expects the initiative, if successful, to result in more pleas of guilty before trial. With a broadened exchange of evidence before trial, the defendant’s advantage of surprise would be largely eliminated, he said. The prosecution will have greatly enhanced ability to challenge the defendant’s alibi or other contentions--and more likely result in an admission of guilt, he said.

“With reciprocal (exchange of evidence), we’ll be able to prove or disprove a defendant’s story before trial,” said Jagels. “They’ll have to tell us what they’ve got . . . just like we have to tell them what we’ve got.”