Death Penalty Controversy Trails Bird

At the height of her power, Rose Elizabeth Bird spent her days ensconced in a stately office that had been occupied since the 1920s by a succession of some of the most influential figures in state government--the chief justices of California.

From behind a broad wooden desk, Bird wrote for hours on matters of life and death, producing legal opinions that eventually would help bring to an end her tumultuous 11-year tenure on the California Supreme Court.

The first woman ever to occupy the position, Bird was also the only chief justice to be removed by voters convinced during a brutal recall campaign that she had allowed her personal opposition to the death penalty to distort her legal rulings.

Today, more than three years since her fall, Bird’s life is both vastly different and, friends say, tragically similar.

Many of her days are spent sequestered at a modest pink home she owns in this Bay Area community, tending to her flower garden and caring for her ailing mother who also lives there. When she’s not at home, Bird, 53, often is making audiotapes of books as part of a volunteer project to help blind law students.

Her quiet street seems far removed from the furor that marred her public life. Yet, as the moral and legal debate continues over the fate of Robert Alton Harris and others on Death Row, Bird still finds herself inextricably bound to one of the most emotionally charged issues of the day. Friends say the former chief justice’s transition to private life has not been easy.

“Rose Bird is becoming the perennial bogyperson that the political right drags out of the closet whenever it wants to get a little hysteria going,” said her friend Gerald Uelmen, dean of the University of Santa Clara School of Law. “She has deliberately chosen a route of being obscure but they won’t let her.”

Republican U.S. Sen. Pete Wilson, for one, has resurrected Bird’s name in mailers and speeches in his bid to become California’s next governor. The California District Attorneys Assn. has made her a centerpiece of its campaign for the so-called crime victims initiative, saying the measure is necessary to undo damage caused by her court.

And in a rare public blast, retired Justice Marcus M. Kaufman recently accused Bird of using “dastardly means” to delay and reverse death penalty cases.

Bird’s friends contend that the continuing vilification of the ex-jurist--who first experienced notoriety in the early 1970s as Gov. Edmund G. Brown Jr.’s agricultural secretary--has taken a toll on her efforts to resume a normal life. Many of Bird’s friends say she has had trouble finding steady work.

For awhile, she worked as a television commentator but was dropped. Some of her friends believe that Bird, a former public defender, now is being “tacitly blacklisted” by law firms that are afraid of losing clients by hiring a woman whose name continues to evoke extreme reactions.

“The kind of substantial offers one might expect would be forthcoming to a former chief justice do not seem to be there for her,” said Bird’s friend Marty Morganstern, who served with her in the Brown Administration.

By narrower margins, voters also stripped Justices Cruz Reynoso and Joseph Grodin of their jobs. They, however, have fared better than Bird. Reynoso serves as special counsel in the Sacramento office of a New York-based law firm, and Grodin is a professor at UC San Francisco’s Hastings College of the Law.

Always intensely private, Bird declined to be interviewed for this article. According to those who have remained in touch with her, she has become increasingly cloistered since her removal from the bench.

“What’s resounding is the silence about what has happened to her,” said a judge who once counted Bird among his friends, but who now rarely sees her.

A Times reporter visited Bird’s home three times to try to talk with her. On each occasion, her car was in front but only her two barking dogs responded to the doorbell. Bird did not answer a note placed in her locked screen door.

Friends say Bird draws a $918 monthly pension from the California Employees Retirement System, but it is not clear what other sources of income she may have. Because her tenure was cut short, she must wait another 10 years before becoming eligible to draw a judicial pension. At the time of her removal, Bird was being paid $93,140 a year.

Finding new ways to earn a living has been troublesome for the former chief justice, who was named to the Supreme Court in 1977 by then-Gov. Brown. To varying degrees, Bird’s friends blame her plight on the unprecedented $10-million recall campaign that was waged against her.

Bird’s election drive was perhaps the single biggest issue of the 1986 political season. The highly negative campaign centered on her votes to reverse capital punishment cases--62 out of 62. Despite Bird’s opposition, the court upheld death sentences in four of those cases, including that of Harris, who murdered two teen-agers in San Diego.

Harris’ scheduled execution on April 3 would have been California’s first in 23 years, but it was stayed by a federal judge pending a hearing today on whether Harris received a fair psychiatric evaluation.

In her 1981 minority opinion on the Harris case, Bird said he should not be executed because the trial occurred in an “inherently prejudicial setting.” Among other things, she said, Harris was portrayed in pretrial publicity as “sewage polluting society.”

Although the 1986 recall campaign primarily targeted Bird’s death penalty rulings, her name came to symbolize much more to a crime-weary electorate. One of Bird’s most outspoken critics of the day, then-state Sen. H. L. Richardson, summed it up this way: “She just stands for the failure of law enforcement.”

Bird’s supporters contend that, while the election and its sloganeering have passed, the damage to her reputation has not.

“The campaign against her was not to defeat her, it was to destroy her,” said Don Vial, her longtime friend and former chairman of the state Public Utilities Commission. “It seems to me that her problems in gaining willful employment are very much related to this destruction, and I find it appalling. She may be the first person so devastatingly destroyed, in a political sense, that just mentioning her name conveys negative thoughts.”

“How many big law firms that practice before the (state) Supreme Court do you think would want to antagonize the justices by hiring Rose,” said another friend. “They say they’re interested but then they never follow up. . . . She has certainly let everybody know she’s available. You’d think she’d be grabbed up by some law firm. She was, after all, chief justice of the California Supreme Court.”

Other friends, however, said that the situation, like Bird herself, may be more complex. They said she has voiced some ambivalence about returning to the courtroom and has privately expressed concerns about her possible effectiveness.

“Rose has said she is worried that the awful notoriety she has received could hurt her clients,” said former Brown Administration official Morganstern, who now heads the Center for Labor Research and Education at UC Berkeley.

Since her departure from the court, Bird has received at least one job offer to practice law again. It came in late 1986 from feminist attorney Gloria Allred’s Los Angeles law firm, where Bird’s campaign office was located and where her friend Michael Maroko is a partner.

But in this case, it was recently learned, Bird killed the deal, displaying the contentious temperament that soured a good number of her relationships on the court and during her earlier years as secretary of agriculture.

As one knowledgeable Bird confidante recounted, the recently deposed chief justice was furious over an anonymous leak to The Times about the negotiations with Allred. She suspected that someone in the firm was attempting to generate headlines at her expense.

Bird immediately denounced The Times story as “totally false.”

At the time, Allred would not confirm that negotiations were taking place. But she disclosed in a recent interview that, despite Bird’s denial, “serious discussions” were under way.

It could not be determined whether Bird has received any subsequent offers to practice elsewhere or how aggressively she has been pursuing a return to the legal profession.

Friends say Bird’s search for work also has been hampered by the failing health of her mother, who raised Rose and two younger sons by herself. The two women are extremely close, and the ex-chief justice has shouldered responsibility for her mother’s care in Palo Alto.

For this reason, according to friends, out-of-town jobs are a problem. A while back, for example, Bird was negotiating with UCLA to become a member of its law school faculty. But the talks ended, one source said, when Bird decided that the university was not offering enough money to subsidize her travel from the Bay Area.

In 1988, Bird landed a good-paying job as a news commentator on two ABC-affiliated stations--KABC-TV Channel 7 in Los Angeles and KGO-TV in San Francisco. Her role was to serve as a liberal counterpoint to conservative commentator Bruce Herschensohn.

Bird was promoted in advertisements as “the most controversial woman in California,” but her commentaries, while thoughtful, fell short of the hype. She did not deliver the sort of fireworks that station executives believe make for good television.

Without a public announcement by the station, Bird was dropped. “No one noticed that she left,” said a KABC spokesman, “because no one noticed she had arrived.”

At least two close friends said Bird told them she was fired because station executives buckled under pressure from advertisers. “She said the advertisers wanted her off the show,” one friend quoted Bird as saying.

Executives at the two stations, however, deny being pressured.

KGO-TV General Manager Jim Topping said Bird and other commentators at his station were dropped when the nightly news program underwent a format change. Although KABC-TV General Manager Terry Crofoot did not return numerous telephone calls, a station spokesman said Bird was let go because she did not live up to expectations.

Things also are not going as Bird had expected on another front. By now, she had hoped to be well on her way to getting a book published that she has been writing about her years on the court. So far, that has not happened.

Friends said the publisher is pushing for a gossipy “kiss-and-tell book,” which, given Bird’s disdain for such endeavors, she is reluctant to do.

Last year, Bird briefly hit the lecture circuit with ex-federal Judge Robert Bork, whose nomination to the U.S. Supreme Court was rejected by the Senate in 1987. Although the move appeared somewhat out of character, Bird collected more than $30,000 for appearances on three campuses--UC Irvine, UC Davis and El Camino Community College.

Bird’s mentor on the Supreme Court was liberal Justice Matthew Tobriner, who died in 1982 after 20 years on the bench. His widow, Rosabelle, remains close to Bird and believes her life has assumed a tragic quality as it moves from one struggle to the next.

Bird has battled breast cancer, been routed from the bench and now, Tobriner said, “she’s had to fight since she got off the court to do something” for a livelihood.

“There is,” Tobriner added, “an inherent tragedy in all of this.”