Death Penalty Argument Focuses on Fetal Death

SAN FRANCISCO —  The state Supreme Court was told Thursday that it should not permit a man convicted of the shotgun-slaying of his pregnant wife and their unborn son to be subjected to the death penalty for multiple murder.

“This is not a torture case, not a mass murder,” said Betty L. Dawson, an attorney representing Michael Allen Hamilton of Bakersfield. “The circumstances of the crime were horrible, but pale in comparison to the spectrum of capital cases we have been exposed to.”

The justices heard oral argument in an unusual case raising the question of whether the state law that allows the death penalty for murdering more than one person can be applied when one of the victims is a viable fetus.

The Legislature in 1970 amended the penal code to include the killing of an unborn child within the definition of murder. That action came in response to a controversial decision by the state high court the same year concluding that such a killing was not murder because a fetus was not a “human being.”

1982 Death Sentence

Hamilton was convicted and sentenced to death in 1982 for two murders in what authorities said was an attempt to collect a $100,000 life insurance policy he had bought for his wife, Gwendolyn, who was seven months pregnant with the couple’s fifth child.

The male baby died of oxygen deprivation after the mother died. Medical authorities testified at the trial that the 2 1/2-pound fetus was sufficiently developed to have otherwise survived outside the womb.

Hamilton’s automatic appeal was first heard by the state Supreme Court in February, 1986, but had not been decided when Chief Justice Rose Elizabeth Bird and two other justices left the court following their defeat by the voters last November. Reargument took place Thursday before a new court led by Chief Justice Malcolm M. Lucas and now including a majority of appointees of Gov. George Deukmejian.

Among other things, Hamilton’s lawyers contended that while the murder statute specifically includes the killing of a fetus, the 1978 death penalty law approved by the voters makes no mention of fetal murders and thus should not be applied in such crimes.

‘Effect Such Legislation’

“If the Legislature be of the view that such a killing is subject to the death penalty it is free to effect such legislation,” defense attorney George Schraer said. “But at this point that is something that neither the Legislature nor the electorate have done.”

Deputy state Atty. Gen. Raymond L. Brosterhous II urged the justices to uphold the death penalty for Hamilton, contending that there was sufficient evidence to show the fetus had been viable and that the capital punishment law was plainly intended to include fetal murders.