State High Court Is Strong Enforcer of Death Penalty : Justice: Prosecutors praise high affirmance rate. But critics say it sends message that legal mistakes are allowed.

By MAURA DOLAN

April 9, 1995 12 AM PT

TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The California Supreme Court is emerging as one of the strongest enforcers of the death penalty among the nation’s state high courts, repeatedly downplaying the significance of trial errors to uphold death sentences.

Once renowned for demanding meticulous attention to legal requirements in criminal trials, the court is noted more now for churning out opinions affirming capital decisions at one of the highest rates in the country.

Only the state high courts of Texas and Virginia appear to rival the California justices’ record for affirming death sentences and convictions. During the past five years, the California Supreme Court has affirmed nearly 97% of the capital cases it reviewed.

“The current court probably bends over backward to affirm death sentences as much as the previous Rose (Elizabeth) Bird court was accused of doing the opposite,” said Joshua Dresslar, a professor at McGeorge School of Law in Sacramento.

Prosecutors and conservatives applaud the court for refusing to allow technicalities to interfere with jury verdicts. By upholding most capital judgments, the California court spares taxpayers the cost of conducting new trials that would yield the same results, these analysts say.

But defense attorneys and some legal scholars point to possibly dangerous ramifications. They complain that the court is sending a disturbing message to trial judges and lawyers that legal mistakes will be tolerated to uphold convictions and sentences.

“What is happening,” said a liberal state Court of Appeal justice who asked not to be identified, “is that the California Supreme Court seems so bent on affirming death penalty convictions that it is altering the criminal law in ways that affect all criminal cases.”

At the heart of the controversy is how the court evaluates the importance of trial errors. The court is bound by the state Constitution to affirm a conviction and sentence even in the face of legal mistakes, such as improperly admitted evidence, if it determines that the errors were harmless and did not affect the outcome.

“What one sees as harmless error is purely subjective,” said Justice Stanley Mosk, the court’s most liberal justice. “And it’s true that the current court is more likely to perceive error to be harmless than predecessor courts have been.”

The California high court’s tendency to downplay the importance of some errors, even in capital cases, puts pressure on lower court judges to overlook the same mistakes in less serious criminal trials, legal analysts said.

The subjectivity of such rulings was illustrated most recently in a non-capital murder case. A conservative federal judge overturned the murder conviction of George Franklin Sr., whose daughter testified she recovered a repressed memory of him killing her childhood playmate 20 years earlier.

The federal judge reversed the ruling in part because of an error that the state Court of Appeal had found to be harmless: The trial judge had told the jurors they could consider as evidence of guilt Franklin’s silence when confronted by his daughter during a jailhouse visit. The California Supreme Court had voted to let the state court’s ruling stand.

To Ephraim Margolin, a prominent San Francisco defense lawyer and appellate specialist, the California Supreme Court’s approach indicates that it believes the end result is substantially more important than process or the letter of the law.

“Part of the rush to affirm has resulted in the jurisprudence of harmless error, which has swallowed the law,” Margolin said. “When the Supreme Court tells you the law doesn’t matter . . . they are sending the message that anything goes.”

Even conservative death penalty advocates admit that the court has used the harmless error rule liberally in capital cases. “I don’t think any objective observer can deny that,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims rights group.

But conservative lower court jurists praise the high court for taking a common-sense and practical approach to death penalty cases. Except in a few instances, these judges say, defendants whose verdicts have been reversed on appeal received the same verdicts in retrials.

“These are not whodunit cases,” said a Republican Court of Appeal justice, who refused to be identified by name. “You could try those cases three or four times, and they would still come back the same way.”

Others are less certain that legal mistakes of the sort approved of by the state high court are always benign. Joseph Grodin, who was a justice on the Bird court, noted that errors deemed harmless often occur in the penalty phase of capital trials, and he said it is difficult to predict how a jury will vote when faced with a life-or-death decision.

“You are talking about a moral question, whether it is appropriate to put this person to death,” said Grodin, now a law professor. “I don’t think we know what influences jurors in that arena.”

The high court often decides errors are harmless if convinced that the defendant is guilty and deserving of death, said retired state Court of Appeal Justice Robert S. Thompson. The Bird court, he said, assumed that virtually no mistake was inconsequential in a death penalty case.

Thompson, appointed to the appellate court by Gov. Ronald Reagan, disagrees with both approaches. He said a careful review of the trial record is often required to determine the possible consequence of error, and California Supreme Court justices must out of necessity delegate that research to staff.

“But this is a pretty personal decision, isn’t it--should somebody die or not?” said Thompson, who believes some people deserve execution. “The judges are forced to live with the concept that they are declaring death on the harmless error basis when they can’t possibly have had time to read all of the record. . . . There are some people who couldn’t do that, and I may be one of them.”

California’s high affirmance rate “either means the trial judges and jurors are doing an exceptional job,” Thompson said, “or the review process has some glitches to it.”

The court’s rulings in capital cases create precedents that affect all criminal law, court analysts said, including the standards for determining whether a defendant received adequate legal representation.

The court once excused as inconsequential the heavy drinking of a lawyer who defended a man facing a death sentence, said Gerald F. Uelmen, a University of Santa Clara law professor. The alcoholic lawyer had been arrested for drunk driving on his way to the trial.

“You would anticipate that the standards (for competency of lawyers) would be the highest in death cases where someone’s life is at stake,” said Uelmen. “His blood alcohol level rendered him incompetent to drive but not incompetent” to represent a capital defendant.

The court’s pattern in such cases probably reflects the justices’ personal support for capital punishment and knowledge that voters want the law enforced, according to some law professors.

“One thing it shows,” said Clark Kelso, a law professor at McGeorge, “is that when the voters speak loudly enough, even the judiciary listens.”

Thompson, who taught law at USC after retiring from the bench, suspects that the high affirmance rate stems in part from the desire of staff lawyers to reach results they believe the justices prefer.

“The problem may not be so much in the judges,” said Thompson, who researched and wrote about judicial decision-making, “but in the perception by staff of what the judges want.”

Voters ousted Bird, the previous chief justice, Grodin and Cruz Reynoso in 1986 largely in protest of the court’s record of reversing capital judgments. The Bird court upheld only four death verdicts in 68 cases, and Bird voted to reverse all of them.

Six of the seven justices now on the court were selected by governors who favor the death penalty. Former Gov. George Deukmejian, who helped lead the campaign against the Bird court, appointed four of the justices, and Gov. Pete Wilson named two. Former Gov. Edmund G. (Pat) Brown appointed Mosk.

The contrast between the current court, headed by conservative Chief Justice Malcolm M. Lucas, and its more liberal predecessor is illustrated by the opinions each wrote in the case of Andrew Edward Robertson.

Robertson, a Vietnam veteran, was convicted in San Bernardino in 1978 of killing two female hitchhikers. He stabbed one of them 170 times. He stabbed the other 120 times, cut off her breasts, urinated on her body and left his knife in her vagina.

The Bird court reversed his original death sentence because of a procedural error in the penalty phase of his trial. The majority wrote that it could not “gamble a life” on the possibility that the error had not influenced the decision to sentence the ice cream vendor to death.

During his sentencing retrial, a more serious error occurred, according to C. Elliott Kessler, who wrote about the case in a 1991 legal journal article. The judge refused to consider testimony that Robertson would not be dangerous in prison before sentencing him to death. The Lucas court upheld Robertson’s sentence anyway.

“In light of the brutal nature of Robertson’s crimes,” wrote Kessler, a criminal defense lawyer, “the court reasoned that the case was not a ‘close’ one, and therefore the judge’s error ‘could not have affected its penalty determination.’ Apparently, the Lucas court was willing to take the very ‘gamble’ that the Bird court had refused.”

A federal district judge, hearing another appeal by Robertson, has issued a tentative ruling in his favor, partially because of the error the Lucas court determined was insignificant.

In reviewing the Bird and Lucas records, Kessler concluded that both courts went too far, albeit in opposite directions, in determining the consequence of trial errors.

A former research attorney for the Bird court, Kessler surmised that the Lucas court’s pattern “reflects its desire to . . . reduce the administrative burden of death penalty litigation.”

This may not be surprising given the sheer volume of death penalty cases in California, said Ronald K. L. Collins, visiting scholar at George Washington University National Law Center.

“They have so many of these cases coming up before them,” said Collins, an expert on state high courts. “Just from a managerial standpoint--not that human life should hinge on that--every time they strike down a death penalty there is precedent, and that means they are going to have to do more work. If you have a relatively lax court, that may well be part of the calculus of their decisions.”

All of the criticism is “just sour grapes” in the view of Deputy Atty. Gen. Dane Gillette. As the state Department of Justice’s capital case coordinator, he closely tracks death penalty cases. Most criminal convictions are affirmed by appellate courts, he said, and capital cases should not be any different.

“The Bird court,” he said, “focused on the most minuscule of errors, looking to create an error-free trial.”

Comparisons of reversal rates in other states can be misleading, he and others maintain, because legal practices vary by state. Capital trials may last only a few days in some Southern states.

Capital defendants in California usually have protracted trials. They also tend to be represented by two lawyers and receive public money to hire experts.

Some analysts also attribute the high affirmance rate to the age of the state death penalty law, passed by voters in 1978. Courts are familiar with it and have learned to apply it correctly, they say.

Others believe that the nearly 97% affirmance rate shows that the justices strain to uphold death sentences, adjusting the law when necessary. Texas’ high court affirms about 92% of capital cases, and Florida’s about 50% to 60%. Most state high courts affirm 50% to 80% on direct appeal.

The California court’s approach was illustrated by its recent ruling on an appeal by David Carpenter, the “Trailside Killer” in Northern California. A trial judge had granted the Death Row inmate a new trial because of jury misconduct.

A juror had discovered that Carpenter had been sentenced to death for other murders, information considered so prejudicial to a fair trial that it was inadmissible.

The California Supreme Court, in a 4-3 decision in March, reversed the trial judge’s ruling and let the death sentence stand. The conservative Lucas joined Mosk and Justice Joyce L. Kennard in the dissent.

“That decision made me retch,” said Uelmen, now on O.J. Simpson’s defense team. “To even have Lucas join the dissent tells you how bad it has become. The message they sent to the trial judge was . . . find a way to affirm. Period.”

Nevertheless, the court continues to have a large backlog of death penalty cases, primarily because too few lawyers are willing to handle the appeals. The shortage is generally blamed on the low pay for defending such cases, their emotionally wrenching nature and the likelihood that the defendant will lose before the high court.

“In an adversary system, knowing the chances of winning are 3% is not very attractive,” Thompson said. “It is little wonder they are having that much difficulty finding competent lawyers to handle these appeals.”