Justices Appear to Back State’s Death Penalty

The Supreme Court indicated Tuesday it is likely to reject a claim that California’s death penalty law is unconstitutional and, in a separate action, upheld the state’s definition of “reasonable doubt” in jury instructions.

Had the court declared those instructions unconstitutional, prosecutors could have faced the daunting task of having to retry thousands of criminals who have been convicted in recent years.

Defense lawyers challenging the death penalty ran into a barrage of skeptical questions from the court, with Justices David H. Souter and Anthony M. Kennedy--two potential swing votes--defending the law because it follows the common-sense approach of telling jurors what factors “are relevant to consider” before imposing a punishment of death or life in prison.

“I don’t see what’s wrong with that,” Souter commented.

Kennedy also chided a defense lawyer for making “an amazing argument” that it is better to give a juror no guidance rather than some.

The high court called the state’s 1978 death penalty law into doubt four months ago when it voted to hear a broad challenge to its constitutionality. Prosecutors feared an adverse decision could go so far as to sweep aside the sentences of all 374 inmates on Death Row.

But after 90 minutes of argument on Tuesday, that threat had clearly faded, and state prosecutors were visibly cheered.

“The argument went very well for us,” state Atty. Gen. Dan Lungren said on the court steps. “The questions went in the right direction, and while you can never read too much into an argument, it seemed to point to a favorable decision.”

The argument focused on the instructions given to jurors who must sentence a convicted murderer either to death or life in prison without parole.

In most states, jurors are told to “weigh” possible “aggravating factors”--such as whether the killer used torture, acted for financial reasons or had committed previous violent crimes. These are to be balanced against possible “mitigating circumstances,” such as whether the defendant was drunk during the crime or had a troubled childhood.

Repeatedly in recent years, the high court has said that states may not use a “vague aggravating factor” to put a “thumb . . . on death’s side of the scale.”

But when two defense lawyers recited those statements Tuesday and stressed that California jurors are told to “weigh” something as vague as “the circumstances of the crime,” the members of the high court appeared to back away from their earlier opinions.

“If we accept your argument, the Georgia (capital punishment law) is going to be unconstitutional, too,” Souter told defense lawyer Howard Gillingham, who represented Paul Tuilaepa, a Death Row inmate who shot four men in a Long Beach bar in 1986, killing one of them.

Kennedy, a Sacramento native who recently authored a court opinion striking down Mississippi’s death sentence statute as flawed, defended California’s law as being better than those in Texas and Georgia.

State Deputy Atty. Gen. William Prahl picked up the theme, calling the state’s law “unique” and a “hybrid that adopts the best features” of other state statutes.

If Kennedy and Souter vote to affirm the state’s law, they almost surely will be joined by the court’s three solid defenders of capital punishment: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

A ruling in Tuilaepa vs. California can be expected before July.

Earlier in the day, state prosecutors avoided another legal nightmare when the high court unanimously upheld California’s jury instructions defining “reasonable doubt.”

The state’s definition of a “reasonable doubt” includes archaic and confusing terms such as “moral certainty,” said Justice Sandra Day O’Connor. “But taken as a whole, the instructions correctly convey the concept of reasonable doubt” and therefore are constitutional, she said.

Everyone agrees that the Constitution requires a jury to find a defendant guilty “beyond a reasonable doubt.” But defining that term has long proved troublesome.

A juror need not resolve every “possible doubt” about a defendant’s guilt because “absolute certainty in human affairs” is unattainable, according to one common instruction.

In 1850, the chief justice of the Massachusetts high court said that a defendant is guilty beyond reasonable doubt when jurors “feel an abiding conviction to a moral certainty of the truth of the charge.” In 1927, the California Legislature copied this definition into state law.

Today, before a jury begins its deliberations, a judge tells the jurors that they must find the defendant “guilty beyond a reasonable doubt.” This means that “after consideration of all the evidence (the jurors) feel an abiding conviction, to a moral certainty, of the truth of the charge.”

Last year, a lawyer representing East Los Angeles murderer Alfred Sandoval challenged this instruction as a “jurisprudential dinosaur” that confuses jurors and is unfair to the accused.

In the 19th Century, the phrase “moral certainty” referred to a factual certainty, as opposed to a philosophical conviction.

But today, jurors would understand the same term to refer to their personal values and judgments, rather than the weight of the facts, said Eric Multhaup, the San Francisco defense lawyer who filed the appeal. As a result of this confusion, a jury might vote to convict a defendant based on a gut feeling about his guilt rather than on the factual evidence, he argued.

In the end, the justices agreed these jury instructions were outmoded and possibly confusing, but they upheld them nonetheless.

“We do not condone the use of the phrase . . . ‘moral certainty,’ ” O’Connor said in the case of Sandoval vs. California, 92-8894. She voiced a warning, too. Unless California amends its criminal code and removes the references to “moral evidence” and “moral certainty,” the high court may well throw out convictions based on them in the future, she said.

Lungren, who personally argued the case in January, hailed Tuesday’s decision and said it “will help safeguard the criminal convictions of thousands of felons, including murderers on California’s Death Row. Had this decision gone the other way, we would have seen a mad dash to the courts to invalidate thousands of properly obtained criminal convictions.”