U.S. High Court to Rule on State’s Death Penalty

Paul P. Tuilaepa is not exactly a shining example for those who want to make a case against the death penalty.

A short, muscular man who glares into the police camera, Tuilaepa shot four men in a Long Beach bar in 1986 and killed one of them. A jury convicted him and sentenced him to die.

This week, the Supreme Court will hear an appeal of Tuilaepa’s case, and not only his fate but also that of California’s death penalty law will be hanging in the balance.

The justices will be focusing on whether the instructions given to California jurors who must choose between the death penalty and life imprisonment are so vague that different juries can reach different conclusions from the same evidence.

Two years ago, a solid high court majority invalidated Mississippi’s death penalty law because a “vague and imprecise factor” played a role in the jury’s decision to impose capital punishment.

“The potential for disaster is there,” said California Deputy Atty. Gen. William G. Prahl, who will represent the state. If the court sides with Tuilaepa, it could mean new sentencing hearings for all of the 374 inmates now on Death Row.

The case comes before the high court at a time when most Americans are demanding swifter punishment for violent criminals, not more procedural rights for defendants.

Yet the court has been quietly moving toward tightening the standards for using the death penalty. Although all nine justices have said the U.S. Constitution, in principle, permits capital punishment, they continue to seek a formula to ensure that it is imposed fairly and rationally.

One justice thinks that is not possible. Justice Harry A. Blackmun announced last month his belief that despite nearly two decades of scrutiny by the high court, the death penalty remains “inherently subjective” and “fraught with arbitrariness, caprice (and) discrimination.”

At the other end of the spectrum, Justice Antonin Scalia complains that the court’s never-ending tinkering with state procedures has made executions practically impossible to carry out.

Tuilaepa’s crime dates to a Monday night football game on Oct. 6, 1986.

It was about time for the San Diego Chargers to take on the Seattle Seahawks, and the bar was crowded at the Wander Inn on Pacific Avenue in Long Beach. Lee Malstrom, the bartender, was finishing his first day on the job.

As Malstrom turned away from the cash register, a man leaned across the bar and shouted: “Give me the money! Hurry up!” Behind him stood a shorter man brandishing a .22-caliber rifle with a scope.

The pair cleaned out the cash drawer and then moved down the bar, emptying wallets as they went. At the far end of the bar stood twin brothers Melvin and Kelvin Whiddon, who had been playing pool and had not seen the robbery taking place.

When the first man pushed Melvin and demanded his wallet, Melvin swung around, punched the thief and wrestled him to the ground.

The man with the rifle, Tuilaepa, then 21 years old, rounded the bar, stood over Melvin Whiddon and shot him in the neck. Kelvin Whiddon moved away, but Tuilaepa fired again, striking him in the chest.

Then Tuilaepa approached Bruce Monroe, who had come into the bar with his wife. When Monroe stepped in front of her, Tuilaepa shot him in the abdomen. The bullet tore his kidney and liver and lodged against his spine.

The two thieves then headed toward the rear exit. Kenneth Boone and Larry Swanson had been standing along the back wall, trying to stay out of the line of fire. Tuilaepa stopped, smiled at them and shot Boone in the neck.

“We didn’t say anything or do anything to stop him,” Swanson said. “For no reason, he just stopped and shot him.”

Melvin Whiddon staggered out the door to Pacific Avenue, collapsed on the sidewalk and died. The other three men were hospitalized but survived to testify.

Three weeks later, Long Beach police arrested Tuilaepa, and eight witnesses identified him in court as the shooter.

“He is a menacing figure, a fearsome killer,” said Los Angeles County prosecutor William Hodgman, who tried the case. “You could even see it on the face of the witnesses when they spotted him in the courtroom.”

Tuilaepa, whose ankles were shackled during the trial, denied his involvement in the crime but had no alibi for the evening of the shooting. The jury convicted him of first-degree murder under “special circumstances.”

Under California’s death penalty law, which voters approved in 1978, a person who commits an intentional murder under any one of 29 “special circumstances” (including murder in the course of a robbery, burglary, arson, rape or child sex crime) must be sentenced either to life in prison without parole or to death.

As they prepared to sentence Tuilaepa, jurors were instructed to consider such factors as “the circumstances of the crime,” the age of the defendant and any history of “criminal activity . . . which involved the use of force or violence.”

Hodgman stressed the violence. “You could have had four dead bodies in that bar.”

Arguing for a sentence of life in prison for her son, Tuilaepa’s mother told the jury of his difficult childhood. Born in Samoa, Tuilaepa had moved to Long Beach with his family at age 6. He was the youngest of 12 children, and his father was a harsh disciplinarian.

As a boy, Tuilaepa was often beaten and chained to a tree in the yard when he misbehaved, according to his attorney, Howard W. Gillingham. He struggled in school because he did not speak English. After becoming involved in a number of incidents, he was sent off to the California Youth Authority and spent most of his teen-age years in a lockup, where he regularly got into fights.

He had a quick temper, CYA officials reported. At his trial, several former CYA employees testified that Tuilaepa regularly hurled vile threats from his jail cell.

“He’s always mouthing off, and they used that against him,” Gillingham said. “He’s a boy in a man’s body.”

The judge in the case told jurors to base their sentencing decision on “the aggravating and mitigating circumstances” as presented in the testimony. If “the aggravating circumstances substantially outweigh the mitigating circumstances,” Tuilaepa should be sentenced to death, the judge said. If not, he should get life in prison.

Two days later, the jurors broke a deadlock among themselves and sentenced Tuilaepa to die.

Under state law, everyone on Death Row is entitled to an automatic appeal. While Tuilaepa’s case was pending before the California Supreme Court, the U.S. Supreme Court continued to adjust the standards governing the use of the death penalty.

After 1976, when the high court restored the death penalty as an option for states, it consistently defended capital punishment against broadside attacks. It upheld capital punishment laws against charges of racial discrimination. It also said the death penalty could be used in cases in which the defendants were juveniles or mentally retarded.

At the same time, however, the court more quietly tightened the standards for imposing the death penalty.

In a Georgia case in 1980, the court overturned a law that authorized the death penalty for murders that were “outrageously or wantonly vile.” That was too vague for the high court, which said states must spell out “clear and objective standards” that give jurors “specific and detailed guidance” for deciding between death and life in prison.

In 1988, the court unanimously invalidated a provision of Oklahoma law instructing jurors to impose the death penalty for “especially heinous, atrocious or cruel” murders, saying such wording was insufficiently precise.

And in reversing a death sentence from Mississippi in 1992, Justice Anthony M. Kennedy said it was now “a well-settled principle: Use of a vague or imprecise aggravating factor in the weighing process invalidates the sentence.” States may not use “an illusory circumstance” to put a “thumb . . . on death’s side of the scale.”

Defense lawyers in California wasted no time in raising this issue. When Death Row inmate Miguel Bacigalupo complained in an appeal that California’s sentencing factors were vague, the U.S. Supreme Court vacated the death sentence and sent the case back to the state Supreme Court for reconsideration.

In a lengthy opinion issued last December, the California Supreme Court reinstated Bacigalupo’s death sentence. It concluded that the Mississippi decision did not apply because California had narrowed its class of murderers through the use of the 29 special circumstances.

In dissent, Justice Stanley Mosk accused the court’s majority of “flouting the authority of the U.S. Supreme Court. . . . The high court has been quick to intervene when lower courts have been recalcitrant.”

As it happened, the U.S. Supreme Court had already intervened the day before. The justices, reviewing appeals from five California Death Row inmates whose sentences had been recently upheld by the state Supreme Court, decided to hear a joint argument in the two cases that focused on the issue of vague sentencing instructions.

The two cases: Tuilaepa vs. California and Proctor vs. California.

In the second case, William A. Proctor had been convicted of the rape, torture and murder of a 55-year-old Shasta County schoolteacher in 1982. His appeal, like Tuilaepa’s, contended he was sentenced to death based on the sort of vague aggravating factors that the Supreme Court had held impermissible in the Mississippi, Oklahoma and Georgia cases.

Defense lawyers say California’s requirement that jurors base their sentences on “the circumstances of the crime” is so vague that it provides no real guidance.

“You are really telling the jury they can do anything they want,” said Clifford Gardner, a San Francisco defense lawyer. “This means you can have two cases with identical evidence, and the jury in Courtroom 1 returns a death sentence and the jury in Courtroom 2 decides on life.”

State prosecutors are not happy to be facing a major challenge to the death penalty now. “The notion that our law has had this hidden defect all this time is an absurdity,” Prahl said. “They (the high court) have upheld it four times before, and the people of California have relied on this.”

Legal experts who have followed the case predict a close vote.

USC law professor Erwin Chemerinsky said the court’s newer justices, David H. Souter and Ruth Bader Ginsburg, hold the swing votes. If both vote to uphold the law, it would almost surely survive intact, he said. Otherwise, it could fall.

Kent Scheidegger of the pro-prosecution Criminal Justice Legal Foundation in Sacramento said he is worried about the Tuilaepa case.

“To strike down (California’s death penalty law) now would be nothing less than a breach of faith,” he told the high court in a brief supporting the state.

“My optimistic view is they will use this case to clarify the confusion they caused” in the Mississippi case, he said in an interview.

Scheidegger noted, however, that high court rulings in the 1970s reversed all the death sentences in California, including those of such notorious murderers as Charles Manson.

“My pessimistic view,” he said, “is that this case could clean out Death Row again.”