Kaufman’s Bird Court Remarks Assailed

A member of the state Supreme Court under former Chief Justice Rose Elizabeth Bird disagreed sharply Friday with charges by retiring Justice Marcus M. Kaufman that the court had delayed capital cases because of personal opposition to the death penalty.

“I have never seen anyone who worked harder than Chief Justice Bird to get those decisions out,” said former Justice Cruz Reynoso, who along with Bird and Justice Joseph R. Grodin was defeated by the voters in the fall, 1986, election. “Any notion to the contrary belies the truth.

“We have to think that Justice Kaufman was speaking without knowing what the situation was at the time,” Reynoso said, adding wryly: “Clearly the tradition of justices speaking through their court opinions rather than press conferences makes a lot of sense.”

Justice Allen E. Broussard, who has served on the state high court since 1981, said: “When Justice Kaufman was on the court, I frequently had to bite my tongue; maybe it’s just best to continue to bite my tongue after he retires.”

Justice Stanley Mosk, another former member of the Bird Court, declined comment.

Kaufman, appointed by Gov. George Deukmejian in 1987 after Bird, Reynoso and Grodin were ousted, retired at the end of January. He charged at a farewell news conference Thursday that the Bird court had sought to undermine the death penalty by delaying cases and reversing an inordinate number of capital sentences.

In a seven-year period ending in 1986, the liberal-dominated court under Bird affirmed four death sentences and reversed 64. Since then, under Chief Justice Malcolm M. Lucas, the new and more conservative court has upheld 66 death sentences and overturned 25.

Defenders of the Bird court rejected Kaufman’s allegations, contending that, at the time of the rulings, much more effort was required to resolve the complex issues surrounding capital punishment. The Bird court’s work in clarifying the law has enabled the current court to decide cases faster, they said.

Reynoso, now practicing law in Sacramento, noted that in the early 1980s the high court was faced with interpreting a 1977 law enacted by the Legislature that reinstated capital punishment. A subsequent 1978 initiative that expanded the law--an initiative widely criticized as poorly drafted--also required interpretation, he said.

At the same time, the U.S. Supreme Court was in the midst of deciding key constitutional questions that affected California cases.

“All that brought a great deal of uncertainty to the law,” Reynoso said. “By the time Justice Kaufman got to the court, the law was pretty well clarified, and clearly the percentage of death sentences affirmed was going to go up.”

Grodin also defended the Bird court, saying he thought the court did a “good job” in working out the problems in the 1978 law. He said Kaufman’s remarks were like newcomers to the West complaining about how long it took the pioneers before them to clear the land and till the fields.

“When Justice Kaufman got there, there wasn’t all that much to do,” Grodin said.

Meanwhile, a spokeswoman for the American Civil Liberties Union of Northern California criticized Kaufman’s contention that defense lawyers and civil libertarians had sought to circumvent widespread public support for the death penalty by making it so expensive and burdensome on the courts that it could not be enforced.

“We are deeply disturbed that a justice of the Supreme Court would seem to be more concerned with public opinion polls than the Constitution,” said Dorothy M. Ehrlich, executive director of the group.

“Even proponents of the death penalty don’t want to see an execution that is a miscarriage of justice. We have to look to the appellate courts to be above politics and above the fray,” she said.