State Aide Says Blackmun Should Remove Self

The man who will defend California’s death penalty law in the Supreme Court this week said in an interview that Justice Harry A. Blackmun had violated his oath of office by announcing his conclusion in advance.

Deputy Atty. Gen. William G. Prahl said Blackmun, 85, should remove himself from the case.

Blackmun announced on Feb. 22 that he would vote to reverse every death sentence that came before the high court on grounds that state procedures in capital cases were “fraught with arbitrariness.”

“From this day forward, I no longer shall tinker with the machinery of death,” he said.

Prahl said in a telephone interview: “If this were any other issue, there would be elements calling for his impeachment. He has prejudged the case based on his personal feelings . . . and announced in advance how he is going to vote, regardless of the facts or the law.

“I think it raises a good question: Why is he sitting on this case? If this turns out to be a 5-4 vote (against the state), the state of California didn’t get a fair hearing.”

Blackmun has precedent for deciding in advance to oppose the death penalty without regard for particular circumstances. Former Justices William J. Brennan and Thurgood Marshall believed the death penalty was unconstitutional because it was “cruel and unusual punishment” banned by the Eighth Amendment.

Prahl, noting that Blackmun, Brennan and Marshall had been the court’s three oldest justices until Brennan and Marshall retired, said: “Supreme Court justices don’t age well on the death penalty. They lose their fortitude for enforcing criminal law.”