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Rulings in Death Cases Shift Court to the Right

December 20, 1987|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — At the state Supreme Court under former Chief Justice Rose Elizabeth Bird, staff members once jokingly warned each other not to say the "A-word"--a playful reference to the court's well-documented reluctance to affirm death sentences.

In nine years, the old court approved capital punishment in four of 68 cases. But now, all that has changed. A more conservative court, led by Chief Justice Malcolm M. Lucas, took over last spring and has already affirmed death sentences in four of the six capital cases it has decided.

The new court has also moved quickly to overturn a 1983 Bird court ruling that otherwise might have forced retrials in at least 30 capital cases. It has also ordered an abrupt halt to a far-reaching inquiry the Bird court launched to see if the death penalty should be struck down as racially discriminatory.

The justices' hard-nosed approach to capital punishment is but one clear sign that the court, as widely predicted, is undergoing an unmistakable shift to the right after the appointment by Gov. George Deukmejian of three new court members to replace Bird and two others defeated in the fall, 1986, election.

School Truants

On other fronts, the new court has upheld efforts to crack down on school truants, drunk drivers and uninsured motorists. It has also turned aside attempts to expand the legal protections against housing discrimination and to increase the penalties for job bias.

"The court has been giving the people pretty much what they wanted--a less ideological and more restrained judicial role," said University of California, Berkeley, law professor Stephen R. Barnett, a court commentator and occasional critic. "With the exception of death penalty cases . . . I don't see them reaching out to attain conservative results."

As Barnett noted, it is the court's record on the death penalty, the key issue in the bitter election campaign against Bird, that has provoked the most controversy thus far.

Prosecutors credit the new court for promptly establishing clear guidelines for the imposition of capital punishment and for refusing to order retrials for what they see as harmless procedural errors during trial.

As a result, they expect more and more death sentences will be upheld in the coming months, and that in the next year, California will witness its first execution since capital punishment was reinstated in 1977.

"This court has a healthy appreciation of the fact that there is virtually no case that cannot be said to have at least some minor or technical error," state Chief Assistant Atty. Gen. Steve White said. "But the court is unwilling to say that because of such an error, the death penalty must be reversed. A year ago, that couldn't have been said."

Brush Aside

Defense attorneys and some commentators are dismayed by what they see as a disturbing tendency by the court to brush aside potentially significant trial errors in order to affirm the death penalty.

"Errors that before nobody would have even dreamed were harmless are now being written off by the court," said Ephraim Margolin, president of the California Trial Lawyers Assn. of Northern California. "The result is that more people will die."

Similarly, University of California, Davis, law professor John B. Oakley cited a "disturbing note" in the court's opinions that suggests a reluctance to look closely at the quality of legal representation being received by capital defendants.

"The court may face a crisis of conscience when it has to confront the fact that the constitutionally required rules of procedure in capital cases have to be policed--either through reversals when the cases are appealed or through more careful scrutiny of how trial attorneys are appointed and their performances reviewed," Oakley said.

The court signaled its new direction last March, little more than a week after the governor's appointees, Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman, were sworn into office, replacing Bird and Justices Cruz Reynoso and Joseph R. Grodin.

At the new court's first weekly closed conference, the justices voted to take the unusual step of reconsidering six of the Bird court's last criminal law rulings. New rulings have not yet been issued in those cases.

The justices then began to attack a heavy docket of pending disputes, including about 175 capital cases that go to the court on automatic appeal. In October, they issued what has been the most significant decision of the Lucas court: a 6-1 decision in the case of James Phillip Anderson that resolved a number of important questions about the death penalty in California.

Death Penalty

In the Anderson case, the court reversed a controversial 1983 ruling that required that juries, before returning the death penalty, must find that a defendant accused of murder during commission of a felony intended to kill the victim. Prosecutors said that if the ruling had not been overturned, retrials would have been required in at least 30 pending capital cases.

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