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Justices to Rule on State Death Penalty : Punishment: Law is challenged in Supreme Court for not giving jurors enough guidance when considering capital cases. Decision leaves California system in doubt.

TIMES STAFF WRITER

The Supreme Court said Monday that it would hear a major challenge to California’s death penalty law, agreeing to rule whether jurors are given enough guidance in choosing between a death sentence or life imprisonment for a convicted killer.

The decision leaves the state’s death penalty system in some doubt, even as the public clamors for stronger punishment for violent crimes.

In choosing to review the law, the justices voted to hear appeals filed on behalf of two Death Row inmates: Paul Tuilaepa, who shot four men in a Long Beach bar in 1986 and killed one of them, and William Proctor who at age 20 was convicted of strangling a Shasta County schoolteacher.

In both cases, their attorneys contended that the state’s death penalty law was “vague” and did not spell out for jurors which factors in the crime or characteristics of the killer called for the death sentence.

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That technical legal issue obviously has drawn the court’s attention. On two occasions in recent weeks, the justices have examined five separate appeals from California Death Row inmates in their private conferences.

In a brief order Monday, they announced that they would hear the two cases early next year and devote 90 minutes of argument to the question of whether the law is unconstitutionally vague.

“We are not alarmed (but) we are taking it seriously,” state Atty. Gen. Dan Lungren said in Sacramento. “We think we have a strong case and we don’t anticipate losing.”

As of Nov. 1, California had 376 inmates on Death Row but no executions are scheduled during the next few months, prosecutors said.

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“I think it’s good news,” said Gerald Uelmen, dean of the Santa Clara University School of Law and an expert on the state’s capital punishment system. “I have the uneasy feeling we are not doing a good job of sorting out which ones should get the death penalty. And these cases seem to be getting a cursory review from the California Supreme Court.”

If the high court were to rule that the sentencing law is unconstitutionally vague, it could force juries to reconsider the death sentences imposed on all 376 inmates.

However, the justices could issue a narrower ruling. In recent years, the court has often upheld criminal sentences even when it concluded that the proceedings were flawed. When it has done so, it has ruled that the flaw was a “harmless error” because strong evidence justified the result.

And, of course, the court could uphold the system as it is. Under the court’s rules, the votes of four justices are sufficient to hear an appeal, but five votes are required to issue a ruling.

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Five members--Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas--have voted consistently to affirm death sentences.

Nonetheless, the high court continues to examine death penalty cases closely. Justice Ruth Bader Ginsburg recently told a meeting of law students that the biggest surprise in her new job was the “enormous amount of time” given to death penalty appeals.

In 1972, when the Supreme Court struck down all death penalty laws as unconstitutional, it did so because the system was then arbitrary and unpredictable.

In one case, a barroom killer would get a death sentence, while in another a multiple murderer would escape with a long prison term.

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Since then states, including California, have reconstructed their death penalty laws and won approval to carry out executions.

But in repeated rulings, justices have voiced concern that jurors are not being given careful guidance intended to select the worst of the murderers for the ultimate punishment. Last year, in a little noticed case from Mississippi, the court overturned a death sentence on the grounds that the law was unclear in specifying which murderers should be executed.

Attorneys in the two California cases based their appeals on that decision.

In most states, they noted, jurors are given a list of “aggravating factors,” such as whether the murder involved torture or a multiple killing. Jurors are also told to consider “mitigating factors,” such as whether the defendant was very young or had a tough childhood.

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By contrast, California jurors who must decide on the proper sentence for a murderer are told to “take into account” 11 factors, such as “the circumstances of the crime,” the defendant’s other “criminal activity” and his or her age.

Prosecutors say that this list properly focuses the jury’s decision, but defense lawyers say that it leaves them with “unfettered discretion.”

Monday’s order also marks the third time this term that the high court has agreed to hear appeals from California murderers.

In January, the court will hear arguments on whether the state’s jury instructions on what constitutes “reasonable doubt” are clear enough. A month later, the court will hear an appeal from an East Los Angeles murderer who was picked up for questioning by police but not given his Miranda warnings--that he had a right to legal counsel and to remain silent--until after he had made incriminating statements.

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* DECISION ON SCOUTS: Court permits Boy Scouts to bar those who refuse to express a belief in God. Case would not affect Southland lawsuits. A20


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