Lungren Says Appeals Void Law on Executions : Death penalty: Attorney general calls for further limits on pleas to federal courts in speech before State Bar convention.


Although upheld in the courts, California’s death penalty law has been judicially nullified by time-consuming and often unnecessary federal appeals, state Atty. Gen. Daniel E. Lungren said Saturday.

The sharp increase in those appeals, combined with the continuing flow of death verdicts from the trial courts, threatens to engulf heavily burdened state prosecutors, he said.

Lungren made a stinging attack on the federal appeals process in capital cases as he spoke before the annual meeting of the California State Bar.

The process allows convicted killers whose death sentences have been upheld on direct appeal to file subsequent constitutional challenges in the federal courts. Recent rulings by the U.S. Supreme Court have sought to limit the scope of such challenges, and similar proposed restrictions are pending before Congress.


Lungren, calling for the adoption of further reforms, noted that under former Chief Justice Rose Elizabeth Bird, the state Supreme Court rarely upheld a death sentence--and thus there were few subsequent challenges in federal courts. The Bird Court upheld four of 68 death sentences it reviewed.

But the more conservative court of Chief Justice Malcolm M. Lucas is affirming about 80% of the death sentences it reviews. Thus, Lungren said, the number of subsequent defense appeals to federal courts is growing rapidly, adding substantially to prosecutors’ burdens at a time of state budgetary constraints.

Overall, there are nearly 300 prisoners on California’s Death Row whose cases are in the stages of direct or secondary appeals.

Lungren’s staff is handling 103 death judgments already upheld by the state high court that are now or soon will be in the federal courts on writs of habeas corpus.


Meanwhile, authorities expect at least 45 affirmances annually from the state high court. In Los Angeles County, 124 capital cases are awaiting trial--one-third of which are expected to result in death verdicts.

Lungren told the Bar delegates that many of the federal appeals filed by the condemned are dilatory and frivolous. He cited in particular the case of Robert Alton Harris, convicted of killing two teen-age boys in San Diego in 1978, whose case is still before the U.S. 9th Circuit Court of Appeals.

State prosecutors have spent more than 6,000 hours working on the 15 separate state and federal appeals Harris has filed in the case, Lungren said.

“Over 14 years after his trial, his execution date cannot yet be determined,” Lungren said. “Because his post-affirmance review is only the first of hundreds who will follow after him, the need for reform is manifest.


“It must be frankly admitted that at this point California’s death penalty law has been judicially nullified by the inefficient and sometimes abusive nature of federal habeas corpus review,” he said.

Lungren defended his recent controversial decision to no longer permit state lawyers to refuse to defend death penalty cases--a practice allowed by his predecessor, John K. Van de Kamp. It was not fair to allow some state attorneys to bypass the arduous capital caseload while adding to the burdens of those already working on death cases, he said.

At the outset of his speech, about 60 of the 400 delegates left the audience, apparently at the urging of members of California Women Lawyers.

A handbill distributed at the meeting proposed a walkout in protest of Lungren’s voting record as a Republican congressman before he won election as attorney general last fall.


His positions, the handbill said, “have been detrimental to the rights of education, minorities and women.”

Lungren told the meeting he was sorry to see the delegates leave. Noting that he had just just arrived from a nearby convention of the state Republican Party, he said, “I thought all the politics was over on the other side of the street.”