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Bird's Legacy More Political Than Legal

December 06, 1999|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

Former California Chief Justice Rose Bird, who died Saturday, will probably be remembered more for the anger she aroused in voters than for her pioneering legal and political career, her friends and colleagues said Sunday.

Bird, 63, died at Stanford University Hospital on Saturday afternoon after many years of battling breast cancer.

Her historic ouster in a 1986 election left a deep imprint on the state appellate judiciary, which had been largely independent before then, and turned the death penalty into a potent political weapon in California.

"The defeat of Rose Bird was significant because it created a new danger in this state, the danger of politicizing a judicial branch that had not previously been subject to political pressures," said Court of Appeal Justice J. Anthony Kline, who served with Bird in Gov. Jerry Brown's administration.

Fourteen years later, the judiciary still has not fully recovered, Kline said. "It is not clear to me whether the judiciary will return to the pre-Bird level of independence," Kline lamented.

Raj Chabra, a Bay Area lawyer and close friend of Bird's, said Bird's loss made the judiciary in California feel vulnerable.

"A lot of judges lost the courage to be independent" after voters removed Bird and two liberal colleagues from the court, he said.

Bird left behind memoirs of her years on the court, presumably disclosing her view of events that she had stubbornly refused to discuss publicly after her defeat. Her friends said Sunday they may be donated to a law school.

She wanted to be as private in death as she had been in life after the court. Her friends said she had requested that she have a private cremation with no funeral. Her family is following her wishes, but friends are tentatively planning memorials in Los Angeles and San Francisco in January.

Bird's legacy and her impact on the judiciary cannot be analyzed "without talking about the death penalty," said University of Santa Clara law professor Gerald F. Uelmen, an expert on the state high court. The campaign to unseat her focused on the fact that she voted to overturn every death sentence she reviewed.

"It used to be that judges were much more open in expressing doubts or criticism about the death penalty," Uelmen said. "It has gotten so that you can't even be a critic of the death penalty and get appointed to the bench."

Orange County Dist. Atty. Anthony Rackauckas, who played key roles in two unsuccessful attempts to recall Bird before forming a political group that helped defeat her at the polls, remembered Bird "as a very fine person" who was out of the mainstream on many issues.

While Bird may be best remembered for her opposition to capital punishment, Rachauckas said her judicial activism resulted in other rulings that "made prosecutions more difficult."

"Hypnosis was a legitimate investigative tool used to great advantage in a number of cases. But in a case decided by the Bird Court . . . they made an outright rule written by Bird that anytime a witness is hypnotized he can't testify at trial," he said.

Rackauckas helped form Californians for a Responsible Supreme Court in 1981 as an assistant district attorney. The following year he co-founded the Recall Rose Bird Alliance. Both groups ran unsuccessful recall attempts.

In 1986, Rackauckas co-founded Crime Victims for Court Reform, which played a key role in Bird's defeat. Sunday, Rackauckas insisted that his disagreements with Bird were strictly political.

"Everything I knew or heard about her personal life was that she was a very committed person to helping the poor," he said. "I firmly believe that she was."

After Bird's defeat, the California Supreme Court went from one of the most liberal high courts in the nation to one of the most conservative.

Critics complained that the court that followed Bird routinely rubber-stamped death sentences, even overlooking significant legal errors that occurred during trials to speed up executions.

Scholars can no longer even point to a landmark ruling of the Bird Court that has survived and continues to affect the law. The post-Bird courts have overturned or sidestepped her rulings to move in a dramatically different direction, not just in criminal matters but also in consumer affairs, the environment and personal injury cases.

"Subconsciously, the court has been influenced by what happened to Rose Bird," said former Justice Cruz Reynoso, who was removed along with Bird and Joseph Grodin. The justices have seemed "reluctant to go against the wishes of the people" although the role of the court is to enforce the Constitution, "particularly in protection of political minorities."

Only during the past few years, under Chief Justice Ronald M. George, an appointee of former Gov. Pete Wilson, has the court moderated, say legal analysts.

Former Gov. Brown, now mayor of Oakland, who appointed Bird to the court, called her "perhaps the last champion of a more sensitive and empathetic perspective" on the death penalty.

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