Attorneys Seek to Limit Scope of Anti-Crime Initiative

In a bid to limit the effect of Proposition 115, defense attorneys asked the state Supreme Court on Thursday to bar the wide-ranging initiative from being applied to crimes that occurred before it was passed last June 5.

Applying the measure to the hundreds of cases pending at its passage would cause confusion in the courts and unfairly “change the rules in the middle of the game” for countless defendants, the lawyers said.

Tulare County Assistant Public Defender Tim Bazar, joined by Jean R. Sternberg of California Attorneys for Criminal Justice, also cited the lack of any provision in the measure calling for its application to pending cases. “There is nothing to show the drafters or the electorate wanted it to apply in retroactive fashion,” Bazar said at a hearing in Los Angeles.

State Deputy Atty. Gen. Karen L. Ziskind agreed that the parts of the initiative that made “substantive” changes--by increasing punishment or defining a new crime--should not be applied to pending cases. But provisions that made “procedural” changes--including a multitude of sections aimed at reducing court delay--should be applied, and doing so would not impair the rights of defendants, Ziskind said.

Thursday’s arguments marked the start of an important new round of review of the sweeping anti-crime initiative. The high court on Dec. 24 struck down a key provision requiring state courts to follow the less expansive rulings of the U.S. Supreme Court in applying 12 different constitutional rights.

But in a separate vote, the justices rejected a claim that other portions of the measure should be invalidated because they violated a constitutional provision limiting initiatives to a single subject.

These remaining sections represent a variety of reforms aimed at speeding cases through the justice system and widening the scope of criminal punishment. Among other things, the measure allows hearsay testimony at preliminary hearings; requires the defense to turn over certain evidence to prosecutors before trial; provides that judges, rather than attorneys, question jurors; creates a crime of torture; and allows the death penalty for accomplices in felony murders.

Several provisions are already under challenge on assorted grounds in the lower courts. Authorities say it may be several years before all of the major legal questions about the initiative are resolved. Since passage, some trial judges have applied procedural features of the measure retroactively, while others have declined, according to attorneys.

The case before the court Thursday was brought by Robert Alan Tapia, now awaiting a capital trial for a 1989 murder. Bazar, representing Tapia, challenged the trial judge’s decision to take over the questioning of jurors, rather than allowing attorneys to do so as they had before Proposition 115 was enacted.