A little-noticed measure adopted in the June 5 primary may have inadvertently eliminated parts of a major expansion of the death penalty included in Proposition 115, the sweeping anti-crime initiative, top law enforcement officials said Monday.
Proposition 114, which drew only minimal attention during the campaign, made a relatively small change in the law but retained other portions of the state’s capital punishment statutes that Proposition 115, backed by prosecutors and crime victims, meant to change.
But under the state Constitution, Proposition 114 would take precedence if the courts find a conflict between the two because it drew more votes than Proposition 115.
Prosecutors said they expected defense lawyers to challenge provisions of Proposition 115 that widened the law to allow the death penalty for the murder of a witness in a juvenile proceeding; for accomplices who, while not actual killers, act as “major participants” in felony-murders; and for killings during commission of mayhem and rape by an instrument.
“We are warning district attorneys of the possibility that if they charge the death penalty under those parts of Proposition 115, they should understand those charges are at risk and their cases could be delayed while the issue is litigated in the courts,” said state Chief Assistant Atty. Gen. Richard B. Iglehart. “But we also feel that the two measures can be harmonized and that the courts will find they are not in conflict.”
Kathryn Canlis, executive director of the California Dist. Attys. Assn., acknowledged there was an “unfortunate technical possibility” the two propositions could be found in conflict. But, she added, she expected the death-penalty expansion mandated under Proposition 115 would ultimately be upheld.
The new questions raised about the broad anti-crime initiative came as a surprise to several attorneys on both sides of the Proposition 115 campaign. Apparently, the issue was not raised publicly before the election. Iglehart said lawyers on the attorney general’s staff had discovered the potential conflict a few weeks ago and now are advising local officials of its potential implications.
One principal spokesman for the initiative voiced confidence that there was no conflict between the two initiatives and that the death-penalty expansion in Proposition 115 was not in jeopardy.
“I don’t see this as being any kind of a problem,” said Los Angeles Deputy Dist. Atty. Albert H. MacKenzie. “I think we have a lot of lawyers getting out their magnifying glasses and trying to find flaws.”
But several defense lawyers who opposed Proposition 115 said Monday they now believe there is a good possibility that the passage of Proposition 114 had overridden some of the capital provisions of the better-known measure.
“We have been running amok with these ballot propositions,” said Ephraim Margolin, a San Francisco defense attorney. “If ever there was an example of how you can kick yourself in the butt, applying a meat cleaver instead of a scalpel, this is it.”
Proposition 114, which received 71% of the vote, called for expanding a provision that permits the death penalty for murder of a peace officer. The provision was redefined to include new categories of such officers now recognized by other laws.
In addition to expanding the death penalty, Proposition 115, which drew 53% of the vote, limited the rights of criminal defendants to those required under the federal Constitution, created a new crime covering torture, and enacted several provisions designed to reduce delay in the criminal justice system.
The measure also contained other death-penalty provisions--such as one that limits a judge’s ability to reverse a jury’s finding of capital murder--that amend other laws.