Kaufman Rips Bird Court on Death Penalty

In an unusual public attack, recently retired state Supreme Court Justice Marcus M. Kaufman on Thursday accused the previous high court of delaying death penalty cases and reversing sentences because of personal opposition to capital punishment.

Kaufman, at a farewell meeting with reporters, said the liberal-dominated court under former Chief Justice Rose Elizabeth Bird, along with death penalty foes, appeared to be using delay and other tactics to prevent the imposition of capital punishment, despite overwhelming public support for the law.

“I see it from defense counsel, from the old court and civil libertarians,” he said. “Everyone is entitled to an opinion. . . . But they are not entitled to obstruct a system of justice to get rid of a law they don’t like.

“To use dastardly means so that the death penalty cannot be implemented is really a disgrace and it is tremendously injurious to the image people have about the ability of their government to govern.”

Known as an outspoken, unpredictable and moderately conservative jurist, Kaufman was one of three justices appointed by Gov. George Deukmejian in 1987 after the defeat of Bird and two other court liberals in the November, 1986, election. The court’s record on capital punishment was at the center of the campaign against the three defeated justices.

The 60-year-old Kaufman, who formally stepped down in February and now is entering private law practice in Newport Beach, stressed during the wide-ranging, nearly two-hour session that he was voicing only his personal opinions. But his remarks represented a rare and uncommonly blunt attack by one jurist on the personal motives of others.

While he did not mention the case, his statements on the death penalty followed sharp criticism by Deukmejian and others on the slow pace of appeals by Robert Alton Harris, the condemned murderer whose scheduled April 3 execution was blocked once again by a federal appeals judge after 11 years of previous proceedings. Had the execution taken place, Harris would have been the first person to die in the gas chamber in California in 23 years.

Among other things, Kaufman claimed that in its tenure the Bird Court decided relatively few capital cases--and that the overwhelming majority of those decisions resulted in reversal of death judgments.

Under Bird, the court affirmed only four capital sentences and reversed 64 in a seven-year period ending in 1986. By contrast, the new, conservative-led court of Chief Justice Malcolm M. Lucas in three years has upheld 66 death sentences and reversed 25. Kaufman said he could see no other explanation for the contrast other than the “personal abhorrence” of the liberal majority for the death penalty.

“Were they dumb? I don’t think so. Were they inefficient? I don’t think so,” he said.

The Bird Court viewed “almost any” procedural error at trial as requiring a reversal, he said. The new court, he said, takes a far less restrictive view and upholds convictions and sentences when such error is more often seen as harmless. “I would expect the people of California are happy with the return to the normal view of prejudicial error,” he said.

The previous court also made several major rulings retroactive, thus aiding defendants in pending capital appeals, he said. “All these new rules were promulgated on the defense side,” he said. “If you kept your case going long enough, you were sure to come up with a new rule requiring reversal.”

Former Justice Joseph R. Grodin, who along with Bird and Justice Cruz Reynoso were denied confirmation in 1986, called Kaufman’s remarks Thursday “clearly off base.”

Grodin, now a professor at Hastings College of the Law here, defended the sometimes time-consuming efforts of the Bird Court to resolve important issues that arose after California reinstated the death penalty in 1977.

“I’m a little surprised (Kaufman) found it appropriate in his closing press conference to make such comments about his predecessors, but that’s his privilege,” Grodin said.

Commenting on other issues, Kaufman said that, in his view, several major civil rulings by the Lucas Court limiting the ability to bring lawsuits were at least partially inspired by concern over the growing caseloads of overburdened trial courts.

The expansion of civil litigation in California, he said, “may actually be affecting the substantive decisions that are made, and that’s something every attorney and person in the state should be concerned about.”

In one such case in which Kaufman dissented, the high court sharply restricted the ability of employees to win large damage awards for wrongful termination. In another case, he joined the majority when the court barred accident victims from suing the other party’s insurer for improperly refusing a claim.

Kaufman stressed that the decisions were reached on valid legal grounds and assailed news accounts suggesting that the justices were partial to insurance companies and other commercial interests. “If any of you think that the justices are a bunch of insensitive oafs and don’t give a damn about the public or injured people, you’ve got another think coming,” he said.

His remarks on the death penalty and the Bird Court came midway during the session when he noted that the reporters present, knowing Kaufman, may have expected “something controversial.” Then he paused and added, “Well, here goes.

“In my view a program has been undertaken by those people opposed to the death penalty,” he said. “They lost at the polls (when voters approved capital punishment) and now they are doing everything in the world, including dragging their feet in capital cases, making them as expensive as they possibly can in the hope that the system would not be able to handle them.”

Kaufman voiced qualified agreement with observers who say the high court is being forced to spend too much time on capital cases. About 25% of his time was devoted to such cases, he said, and he frequently worked seven days a week while on the court.

He said he supports a proposal for a state constitutional amendment that would send capital cases first to the state Courts of Appeal, which then could perform much of the work now being done by the justices.

Under current law, death penalty cases now go directly to the high court, which, before issuing a decision, must review tens of thousands of pages of transcripts and other documents and target key issues. Under the proposed alternative, the high court would still review all death penalty affirmances by the Court of Appeal, but would review reversals only at the justices’ discretion.

Kaufman’s voice rose often as he spoke, providing a reminder of his sometimes bellicose questioning of attorneys during argument before the court. That appearance, however, contrasts with his friendly and open manner off the bench.

Characteristically, he spoke with good humor about being labeled a “redneck with a high IQ”--a description a colleague made years ago but that still appears frequently in print. Kaufman said the description was never intended to carry connotations of bigotry.

“I think of myself as a working man,” he said. “I have been blessed with a wide mouth and a high IQ. . . . They talk about being ‘elevated’ to the Supreme Court, but you’re still the same person you were before you were appointed. I felt I was just a common person.”