CALIFORNIA ELECTIONS / PROPOSITION 115 : Measure Seeks to Remodel Criminal Justice Procedures

TIMES STAFF WRITER

Frustrated by what they see as major obstacles to justice in California courts, law enforcement authorities and their allies are asking voters for sweeping changes to speed trial proceedings and set broad new limits on the rights of criminal defendants.

The Crime Victims Justice Reform Act--Proposition 115 on the June 5 primary ballot--seeks to reduce the delays in criminal procedures, expand the death penalty and bar state courts from granting defendants any greater constitutional protection than required by the U.S. Supreme Court.

In short, the state criminal justice system would be remodeled to more closely resemble the federal system--with proceedings moving faster and defendants asserting fewer rights.

The initiative takes dead aim at the liberal rulings and the trailblazing doctrine of state judicial independence that were the hallmark of the California Supreme Court before the defeat of former Chief Justice Rose Elizabeth Bird and two other court members in the 1986 election.

Sparing little ammunition, its sponsors promote the measure as the solution to vexing procedural barriers that arose in the Night Stalker murder case and the McMartin child-molestation trial.

A recent Times poll showed that 65% of voters questioned favored the initiative, 18% opposed it and 17% were undecided.

Initiative opponents, led by a coalition called Californians for Privacy, are focusing their attack on aspects of the measure they say could turn the tide in their favor.

First, they contend that Proposition 115 would cost taxpayers hundreds of millions of dollars--a charge steadfastly denied by proponents, who contend that it will save hundreds of millions of dollars.

Second, foes contend that the initiative would jeopardize rights to abortion, sexual privacy and free speech established under the state Constitution.

"The California Supreme Court would become irrelevant and, instead, we would rely for our freedoms on the U.S. Supreme Court," Sacramento defense lawyer Michael Rothschild said. "Californians would be giving up their right to have independent control over their own destiny."

Proposition 115 supporters counter that the initiative applies only to criminal procedures and thus would not limit any civil rights guaranteed under state law. Opponents, they say, are using the abortion and privacy issues as campaign red herrings.

"The abortion issue is completely bogus," Orange County Deputy Dist. Atty. James P. Cloninger said. "Californians for Privacy is just a front for criminal defense attorneys who don't like the initiative but know that if they came out front--and admit it will make it harder on criminal defendants--they won't have a chance of winning."

Whatever its merits, the question of the initiative's effects on abortion rights has emerged to play a role in this year's gubernatorial campaign.

State Atty. Gen. John K. Van de Kamp, a Democratic candidate for governor, opposes Proposition 115 on the grounds that the privacy provision would jeopardize abortion rights. As a remedy, he proposes to include all but that portion of the measure in an alternative anti-crime initiative that he wants to place on the fall ballot.

U.S. Sen. Pete Wilson, the honorary campaign chairman for Proposition 115 and a Republican candidate for governor, vigorously denies that the measure would endanger abortion rights. So does former San Francisco Mayor Dianne Feinstein, the other Democratic gubernatorial candidate and a backer of Proposition 115.

Proposition 115 is on the ballot just eight years after passage of an anti-crime initiative called the Victims' Bill of Rights, which established longer prison terms for repeat offenders, permitted wider use of evidence against defendants and gave victims restitution rights.

Those backing Proposition 115 say the previous measure did not go far enough in limiting the doctrine of state judicial independence championed by the Bird court. Under that doctrine, the court invoked the state Constitution to establish procedural rights for criminal defendants that exceeded those required by the U.S. Supreme Court under the federal Constitution.

To end that practice, Proposition 115 would amend the California Constitution to require state courts to follow the generally more restrictive federal courts in interpreting a number of rights of defendants in criminal cases.

For example, under the initiative, authorities could prosecute the owner of a marijuana patch spotted from a helicopter flying at 1,600 feet--a surveillance tactic upheld by the U.S. Supreme Court but ruled illegal by the state Supreme Court in 1985.

The measure would also expand the scope of the state's capital punishment law. Following the lead of the federal high court, the initiative would permit the death penalty to be imposed in certain instances on accomplices in felony murders.

In efforts to speed jury selection, the measure would turn over to judges the main task of questioning prospective jurors, allowing attorneys to do so only for "good cause." And it would ease requirements that prospective jurors in capital punishment cases be questioned individually in private. Backers note that it took six months to select a jury in the Night Stalker murder trial of Richard Ramirez in Los Angeles.

Initiative supporters say other procedural changes they call for would ease the burdens of victims and other witnesses who must make repeated appearances in criminal proceedings often plagued with delay. One provision, for example, would allow police officers to present hearsay evidence at preliminary hearings, relieving other witnesses of the duty to appear to support such testimony.

Proponents note that in the McMartin child-molestation case, child witnesses had to testify at the preliminary hearing, repeat that testimony at the first trial, and will have to appear again during the retrial of defendant Ray Buckey.

Initiative backers say their aim is not so much to revolutionize the California criminal justice system as to bring it in line with procedures used in the federal system and the majority of other states.

"Generally, California is the oddball state," Los Angeles Deputy Dist. Atty. Albert H. MacKenzie said.

Initiative foes take a sharply different view, contending that the measure would jeopardize a broad array of rights established under state law in recent years.

They claim, for example, that the initiative would undermine the free-speech right to conduct certain political activities in shopping centers--a right established under a landmark ruling by the state Supreme Court in 1979. With such protection gone, campaign workers could be prosecuted for trespassing while circulating petitions or distributing leaflets, foes contend.

Or, they say, the Legislature could reinstitute previously repealed laws that prohibited homosexual activity between consenting adults in private. The U.S. Supreme Court ruled in 1986 that such laws did not violate the federal Constitution--and thus could be validly resurrected in California under Proposition 115, opponents argue.

"Right now, sexual activity between consenting adults is protected by California law," said Grace L. Suarez, a San Francisco deputy public defender opposing the initiative. "But if some future Legislature wants to turn back the clock, there would be no independent state right to privacy to prevent it."

The coalition against the initiative is training most of its fire on what it sees as the measure's threat to abortion rights in California.

Opponents of Proposition 115 say the California right to privacy placed in the state Constitution in 1972 would protect abortion in this state even if the U.S. Supreme Court decides to abandon the federal right established in Roe vs. Wade. But if the initiative passes, and Roe vs. Wade is discarded, state courts could decide that old, unenforced penal laws against abortion are still valid and can be used in prosecutions, initiative opponents contend.

Supporters of Proposition 115 stoutly deny it would affect abortion rights and say its reference to privacy was included only to guard against a state court's granting new privacy rights to protect criminal suspects from surveillance by police.

The initiative's proponents also point out that judges, in interpreting a ballot measure, sometimes look beyond its language to the stated intentions of its supporters. And in this instance, backers of Proposition 115 say repeatedly in arguments in the voter's pamphlet that the initiative is not intended to limit "in any way a woman's right to choose to have an abortion."

Another line of attack on the initiative focuses on its potential costs. Opponents say that more lawyers, judges and courtrooms will be needed to implement its speedy-trial provisions. With fewer preliminary hearings--in which the prosecution reveals its case--more defendants will elect to go to trial rather than plead guilty, foes say.

All told, they contend, the measure could end up costing taxpayers more than $500 million a year.

But backers of Proposition 115 say the initiative could save nearly $270 million a year by reducing the length of criminal proceedings.

PROP. 115: HOW IT WOULD CHANGE LAW Here are some of the ways Proposition 115, the Crime Victims' Justice Reform Act, would change California criminal law.

RIGHTS OF DEFENDANTS

Current Law: The California Supreme Court has often granted criminal defendants broader protections under the state Constitution than are required by the U.S. Supreme Court under the federal Constitution.

Prop. 115: Defendants would be afforded no greater rights than those granted under the U.S. Constitution; state courts would be bound to follow federal rulings on, among other things, due process, assistance of counsel, speedy trial, privacy, and protections against unreasonable search and seizure and cruel or unusual punishment.

DEATH PENALTY

Current Law: Defendants convicted of first-degree murder may be sentenced to death when any of several "special circumstances" are found, such as multiple killings or murder during commission of certain felonies.

Prop. 115: The law would be expanded to permit death sentences for killing a witness to prevent testimony in juvenile proceedings; for killings during commission of a kidnaping, sodomy, oral copulation, train-wrecking or rape by instrument, and for a "non-triggerman" accomplice in a felony murder. Judges could not dismiss a special circumstance found by a jury. Minors age 16 or 17 convicted of first-degree murder with special circumstances still could not be sentenced to death, but could be sent to prison for life without parole.

TORTURE

Current Law: There is no specific crime of torture; attackers who torture their victims may be charged with such offenses as assault or mayhem.

Prop. 115: Under a newly created crime of torture, convicted defendants could be punished with life in prison.

PRELIMINARY HEARINGS

Current Law: Under a 1978 state Supreme Court ruling, defendants indicted by a grand jury are entitled to preliminary hearings to contest the charges before trial. As a result, prosecutors rarely go to a grand jury but bring charges directly against a defendant.

Prop. 115: Defendants would have no right to a preliminary hearing after being indicted by a grand jury. Also, police officers could offer hearsay testimony at preliminary hearings on information they obtained from victims and other witnesses, who themselves would not have to appear.

SPEEDY TRIALS

Current Law: Defendants have the right to trial within 60 days but ordinarily get more time to prepare for trial. Continuances at the request of the defense are frequently granted.

Prop. 115: The people of California, represented by the prosecution, would be granted the right to a speedy trial; public defenders and court-appointed defense attorneys could be named to represent defendants only if they pledge to be ready within specified time limits; felony trials would be set within 60 days of arraignment unless there is "good cause" for delay.

EXCHANGE OF EVIDENCE

Current Law: Defendants are entitled to pretrial access to evidence of both guilt and innocence that is held by the prosecution, but in general there is no such reciprocal right for prosecutors.

Prop. 115: The prosecution would have access to the names of all witnesses the defendant intends to call, statements they have made, and all evidence the defendant intends to offer.

JURY QUESTIONING

Current Law: Attorneys on both sides have broad latitude in questioning prospective jurors to challenge them for cause--such as bias--or to remove them by peremptory challenge, for which no cause need be shown. In capital punishment cases, prospective jurors must be questioned individually and in private.

Prop. 115: Judges would conduct jury questioning, with attorneys participating only for good cause. In capital punishment cases, prospective jurors could be questioned in the presence of others.

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