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Justice Lucas' Position

December 15, 1985

The Orange County edition of The Times (Dec. 1) contained an article by Jerry Hicks, "For Rose Bird, the Jury is Out."

In the article Hicks reports that attorney Wylie Aitken, Orange County chairman of the Committee to Preserve the Court, "pointed out that Malcolm Lucas, who was appointed to the Supreme Court by (Gov. George) Deukmejian, has voted against the death penalty five out of the six times he has had the chance."

Solely to set the record straight, may I correct the impression that I willingly joined my colleagues on the court in reversing "five out of six" death-penalty judgments. So far, I have participated in 10 filed death-penalty opinions. In six of these (Whitt, Ramos, Anderson, Hayes, Chavez and Monteil), I expressly concurred in reversal of the judgment only under the compulsion of earlier cases decided before I joined the court, and with which I strongly disagree.

In the seventh case (Guerra), I dissented from reversing a death judgment and explained that I could no longer simply concur under the "compulsion" of prior cases, which I felt were incorrectly decided. (My change in procedure in this regard was correctly reported by The Times in a front-page article written by Dan Morain on Nov. 20).

In the eighth case (Bigelow), I concurred in the judgment only. In the ninth case (Memro), I joined a dissent protesting the majority's unqualified reversal of a death judgment. Only in the tenth case (Armendarez), did I sign the majority opinion without qualification or reservation.

In summary, of the 10 death-penalty cases in which I have participated thus far, I would have affirmed the death judgments in seven had my own views commanded the support of a majority of the justices. I hope the foregoing review clarifies the matter. Despite these "nits," I continue to find that your newspaper provides accurate, interesting and timely information for its readers.

MALCOLM M. LUCAS

San Francisco

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