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Thursday, November 08, 2018


Thirty-five years ago this December, the California Supreme Court decided a case that changed the course of capital punishment in the state, and also led to the loss of four of the justices who voted for the decision when they were targeted by conservatives because of their votes. 

I was partly responsible for this because the case was mine.

            In the early 1980’s I was working in the appellate division of the Public Defender’s office. The job was to brief and argue to higher courts when our lawyers lost an issue before trial, or to defend when the DA appealed a ruling in our client’s favor. It was a chance to make law. Statutes define laws, but when they are applied to cases, courts have to interpret them. A trial judge gives an opinion and then higher courts review and affirm or reverse. In so doing, they establish precedent, that is, they “make law.”

            That was the attraction for me . . . and it was the worry of our head deputy, Dennis Fischer. He was there to make sure we didn’t do more harm than good. He worried that we might make “bad law;” that is, inspire an interpretation so adverse to our clients that it would have been better to not raise the issue at all. There couldn’t have been a better gatekeeper. He was brilliant and subtle, able to see all the ramification of a problem.

            Dennis was the only person I’ve known who really had a photographic memory. In my first month there, I asked Dennis if he knew of a case relevant to some issue. He rubbed his chin, raised eyebrows that were filled with iron gray hairs that made him look like a schnauzer, and closed his eyes. “Williams v. Superior Court, 1963, 268 Cal. App. 2d, at page 121, middle of the right hand page, the concurring opinion by Justice Murphy. Oh, and there’s a tuna smudge in the upper right corner.” He opened his eyes. “They ought to rename the case. There are too many Williams cases.” He goes on to mention four or five, including odd tidbits, such as “In one of the cases, the trial judge was a Williams, and in another, the defense attorney’s first name was William.” He paused to scowl. “Too many Joneses, too.”  

           There were good lawyers in Appellate. One was John Scott. I was impressed by the fact that his father was one of the creators of “Rocky and Bullwinkle.” I was older than the rest of the crew there. In meetings, I had to get used to the table talk: “I’m taking my vacation to follow Springsteen on tour.” “Cool!” Most were too young to recall “Rocky and Bullwinkle.”

            I have a stack of thirty or more appellate briefs in my garage. I don’t remember most of the cases. I lost most of these. Writs are seldom granted; most don’t even get a hearing. You get a post card from the court simply stamped, “denied.” It is frustrating. You work hard to make the arguments, do tedious research to find just the right authorites to support your argument. You agonize over your work. 

In those days before word processors, you handwrote it, typed it, gave it to a secretary to put onto legal form, then proofread, and made the right number of copies. All this you had to do on a strict deadline, a limited time period to file the briefs with the court. Then you wait.

            The opponent (usually the District Attorney appellate lawyer, or the Attorney General) responds with his brief. You might want to answer that by a letter. Then you wait. Most times you get the dreaded postcard. In rare cases, the appellate justices want to hear oral argument. 

Great! You prepare for your few minutes before the panel of three justices, answering their questions and clarifying your points, rebutting the opposition’s specious arguments. You are brilliant. (Every observer in the court is impressed.) Weeks later, you get a written opinion denying your writ. Now you hope the opinion won’t be published, so your name won’t be associated with this rotten decision.

            Very few of the cases actually made new law, good or bad. One of the good ones was called Chism v. Superior Court. It involved one of those obscure legalistic points that in practice, matters a lot. Not to be too technical, here’s what it was about.
            At a preliminary hearing, the judge (called a “magistrate” for obscure historical reasons) can dismiss a case or any charged crime, or can reduce or add charges shown by the evidence. The rulings can be challenged in the trial court by a motion to dismiss (PC Sec. 995-so we call it a “995 motion.”) The trial judge can grant or deny the motion. A new amendment allowed the DA to ask the trial judge to reconsider a charge that the magistrate dismissed. This was meant to save the time and expense of re-filing the charges and starting all over again. All he had to do was send it back to the magistrate to correct the wrong decision.

            Well, in Chism, Judge Leetham decided that the magistrate was wrong in dismissing a murder charge. But instead of sending it back, he simply decided to act as the magistrate and ordered the case to trial. The trial public defender asked if this is what the new law intended; I didn’t think so. I persuaded Dennis Fischer to let me challenge it.

            The appellate court, for once agreed with me. They wrote a long opinion reversing the trial judge’s order. But then, Judge Leetham, who was known as one of the more eccentric and ornery characters on the bench, decided to ignore the order. I ran to the appellate court to inform them of this. While I waited, the clerk took my letter to the justices. He came back a few minutes later, rolling his eyes. “Man, I’ve never seen them so pissed off.” I waited another half hour. He came back with a typed order, directed to Judge Leetham to show cause why he shouldn’t be held in contempt.

            This was shit directly in the center of the fan. Eventually, Leetham folded and the case was sent back. The case acted to limit the effect of the amended law so as to benefit our clients.

            I had some success once I learned the knack of writing briefs. Very few appellate cases get to be heard; most are summarily disposed of. The trick was to spark the interest of the justice’s law clerk, who is the first one to read the brief. The judge will often rely on his gatekeeper’s opinion before bothering to consider it.

            I was lucky that in high school I wanted to be a sports reporter. I had worked briefly for the high school sports editor of the Journal-American. I reported games, a few inches of type that might get into the Sunday sports pages. I stayed an extra semester my senior year in high school so that I could be the sports editor of the school paper.

            I consider that my journalism class was the most valuable one I took in high school, with the possible exception of “Typing,” which provided me with a lasting skill and placed me in a class among twenty-five girls who thought I was cute.

            I learned that the first rule of writing the news is to put the most important facts in the first paragraph. You have the template of who, what, when, where, why, and how. But you have to choose the most crucial “w” to lead with. And it has to be tantalizing enough to lure the reader into the next paragraphs. That is what I did with brief writing. (Parenthetically, it is the same principle in short stories, thriller scripts, and sermons.)

            Rick Santweir, a PD in Pasadena, represented Celestino Mark Carlos before Judge Jack Tso. After a prelim, he had filed a motion to dismiss (a PC S 995 motion.) The judge denied it and Rick wanted us to file a writ to get an appellate court to reverse it. It was a capital case.

            That peaked my interest. It involved an interpretation of the new capital punishment law. In 1977 the legislature had passed a new one; then in 1978, the voters approved an Initiative that superseded the year-old law. By 1981, the latest one still hadn’t been considered by the California Supreme Court and there were lots of open questions.

            This one involved whether an aider/abettor (i.e., not the actual killer) could be given the death penalty even if he never intended to kill anyone.

            Carlos and Perez went to rob a supermarket. Mr. S took his daughter there so she could ride the mechanical horse that was outside the doors. He was a photographer for the Sheriff’s Department, and a reserve deputy. He saw the two men with guns as they went into the market.

            He took his child to his car, got his own gun and waited for them to emerge. When they did, he drew his weapon and demanded that they halt. Perez opened fire. So did Mr. S. Carlos did not shoot; he ran away, presumably to get the car.

            The child was fatally hit, probably from a ricochet fragment from the father’s own gun. Perez was hit and limped to the car. Carlos drove him to a hospital. Eventually they were both arrested.

            Under long established law, Carlos was considered equally guilty of first-degree murder if he aided in a robbery that resulted in a death, whether the death was intended, accidental, or negligent. That is the felony-murder rule. (A legal quirk: Because the child was shot by her father and not the felon, another technical rule applied: if, in response to the felony, police respond and the felon “initiates a gun battle” in which someone is killed by the police, then the felon is “vicariously liable” for the death and so is the aider/abettor, even if he didn’t shoot or get involved in the gun battle.)

            First-degree murder means 25 years to life in prison. But to qualify for more—life without parole or death—a “special circumstance” had to be found. The 1977 statute listed seven special circumstances. The 1978 Initiative that superseded it expanded the list to nineteen.

            The first big question posed by the new law: Is every first-degree murderer automatically a death penalty candidate?

            The answer is no: One category of first degree was omitted from the list of special circumstances—that was “premeditated, deliberate, intentional murders.”

            Did that make sense? Wouldn’t that person be more deserving of the severest penalty than an accidental death that occurred during a felony?

            Next: Do you need some more evidence over and above the proof of a robbery and a resulting death? 

And what about the “aider/abettor” who didn’t fire the shot?

Does the law require more to make that person eligible for death or life without parole?

If not, why require special circumstances at all? 

Every felony-murder would be a death penalty offense, even if the death was unintended, but was accidental or the result of negligence. (If a store clerk has a heart attack during a robbery, that is felony murder. The driver waiting at the curb is just as guilty as the one who pointed a gun. If the culprits fleeing a burglary hit a pedestrian, that is felony murder. Even a guy in the back seat is guilty.)

            The language of the statute seemed to demand that the aider act with “intent;” but intent to do what? To rob? Or to kill?

            Could you infer intent to kill just from the act of participating in an armed robbery? Are robberies so inherently dangerous that anyone participating in one is subject to the death penalty is someone dies?

            The statistics show that very, very few armed robberies end in someone’s death. Robberies are relatively commonplace in our culture. (The felony murder rule also applied to other felonies, including burglaries—where deaths are extremely rare events.)  

           Here, Carlos ran away, got in the car. He didn’t fire his weapon. Does the law demand something more in order to execute someone? (Judge Tso thought he “facilitated the murder” by going to get the car, an act that freed Perez to stay and shoot. But that interpretation of the evidence was a real stretch—Perez shot because he was faced with a man with a gun, not because he felt safe.)

            I wanted the assignment. Dennis Fischer was cautious. He thought of the big picture. Lives were at stake. There are two sayings: “hard cases make bad law” and the similar, “Bad cases make bad law.” Appellate judges might be looking for egregious facts in order to rule in the way they wish. Fischer worried that the death of a child might be too inflammatory, tempting the conservatives on the court to use it to interpret the new death law too broadly.

            We consulted the state public defender and the California Appellate Project, two agencies that were closely monitoring the law’s progress. There were a few other cases in the pipeline that touched on these issues. They gave a go ahead. Mike Millman was our contact person and he later became a good friend.

            As expected, the intermediate appellate court denied our writ. We sought a hearing in the Supreme Court, always a long shot. To our surprise they granted the hearing, but then merely held it in abeyance, along with the other cases they were considering. Which one they would choose to actually decide was a mystery.

            Almost a year went by without a decision. Meanwhile dozens of capital cases around the state went through the trial courts, some resulting in death verdicts, others in “lwopp” sentences.

            Most people give little thought to the idea of capital punishment . . . until an incident reported in the news stirs emotions. Then you hear, “If you take a life you should lose yours, period!” Long ago, the law decided that “an eye for an eye” was not a rational standard for punishment. (Actually, the biblical idea was a reform of a stricter earlier law: instead of death for taking out one’s eye, the law would only demand your eye.)

            Some killings of human beings are unpunished because they are justified (self-defense) or accidental, or negligent (say, in auto accidents). Some are intended but don’t rise to the level of murder: such as manslaughter (divided into voluntary and involuntary—vehicular negligence is a far more common cause of death than armed robberies). Second-degree murder is not premeditated, but occurring in “the heat of passion,” that is, without deliberation and premeditation. (Something called the second degree felony murder rule is triggered by a death during a felony that is not considered to be “inherently dangerous.”)   

            Up until 1972, that was pretty much the law. States could execute anyone for any murder defined as first degree. (Some states still had the death penalty for rape.) But that is not what actually happened. Death penalty verdicts were rare and becoming rarer.  Also, the same crime might result in a life sentence or death, depending on the whim of prosecutors, judges, or juries. Race was often the deciding factor. Geography was also important.

           Finally, the US Supreme Court, in Furman v. Georgia, decided 5-4 that death penalty laws violated the Eighth Amendment bar to “cruel and unusual punishments.” It was applied “arbitrarily,” “wantonly,” “freakishly,” “capriciously.”  There had to be a rational way to distinguish between those murders that merited death from those that didn’t.

           It took a few years for states to pass new death penalty laws. Most solved the complaint by first creating a list of special first-degree murders, the ones that merited death; and second, by adding a penalty phase, to consider this particular murderer.  

            California perceived another flaw: if the alternative to death was a life sentence—which was widely understood to mean a period of years before parole—jurors were likely to favor death. So, California added “life without the possibility of parole” (lwopp) as the only alternative to death once guilt of special circumstance murder was found.  

But how would that choice be made? What distinguishes those who merit death from those who don’t?

            California turned out a list of “aggravating factors” and “mitigating factors.” These are guidelines for juries, with instructions to decide which “outweigh” the others.

            Yet, even with these stricter conditions, the practice results in a wide variance in results. Of the capital cases I have handled that have gone to penalty phases, the only one the led to a death verdict is no more deserving than the others that resulted in life sentences. I mean that by any objective standard: the number of murders, the manner of killing, the background of the culprits, and any other factors that apply.  
            The difference between the one and the others was just as arbitrary and capricious as the application of the law has ever been. And my experience is far from unique.

            The Carlos decision had a huge effect on murder cases all over the state. It reduced the number of special circs cases, resulting in offers of lesser sentences. It encouraged defenses relating to mental illnesses that affected a person’s ability to form the intent to kill. Defense lawyers had to delve deeply into a client’s mental state: delusions, drug psychosis, brain injury, retardation, all might limit a person’s ability to form the intent to kill. Psychiatrists, school records, family histories, and many more sources were now sought.

            After Carlos, the court had to decide whether to apply the holding retroactively, that is, to cases that were finished before Carlos required the intent to kill. 

The next year, in People v. Garcia, they decided that it should apply. Ironically, the court’s opinion cited another case that I had briefed and argued, Donaldson v. Superior Court. In that case the court refused to retroactively apply its holding in a case called DeLancie v. Superior Court, that limited bugging of conversations between visitors to police stations. They had to distinguish Garcia from Donaldson, and they did so.

            Over time, the court considered cases that had been tried before Carlos. They reversed any case where the issue of intent to kill might have been raised, and that included the mental issues. It resulted in many reversals. Cases were sent back to the trial courts for retrial on the special circs, now requiring proof of intent to kill. Many of these were dropped to first-degree murders. Others were bargained down even further.
         I represented Carlos when his case came back. Without special circs, the DA agreed to reduce it to second-degree murder (fifteen years to life, with possible parole).

            The strain on the Supreme Court produced some anomalous results. One case involved a murder in which the victim’s body was mutilated by cutting off hands and head. How could one possibly argue that this was done without the intent to kill? The court majority argued that the mutilations might have been after death, to prevent identification. They sent it back for retrial.

           The media reported cases like that one as examples of a liberal activist court going overboard to enforce its personal agenda of opposition to capital punishment. They focused on CJ Rose Bird as the enemy and other justices as accomplices. Sadly, they were on the ballot for renewal of their terms.
            The Bird court “liberal activism” had offended the insurance industry by broadening the rights of plaintiffs when they proved that the companies acted in “bad faith” by stonewalling obviously legitimate claims. Other decisions had favored consumers over banks and other powerful institutions.
            As a result, a well-funded campaign was launched to get rid of the nuisances on the court. The death penalty rulings became the focus of the ad campaign. It worked. Bird and three others were recalled. Four more timid and conservative appointees eventually limited or reversed many of the Bird court decisions. This followed the national trend: after the Warren Court, the Burger and Renquist courts managed to mangle that court’s legacy of expanding civil liberties.

            Carlos was “good law” until 1987 when the US 
Supreme Court reversed itself by allowing death where there was no proof of intent to kill, but only showed “recklessness.” They upheld a state’s death verdict on someone who helped a friend escape from jail and kidnap someone. Because he should have known that his friend was a dangerous killer, he was reckless and deserved the penalty.

            Bad cases make bad law.

This is bad law because it lessens the certainty that imposition of the death penalty should demand. The concept of “intent to kill” is far easier for prosecutors, judges and jurors to measure than vague notions like “reckless indifference to life.” 

(For example, Tison v. Arizona, the SCOTUS case that imposed this lesser standard, applied it to a young man who was helping someone escape from prison, opining that he should have known that the fellow he was helping would be likely to kill someone during the escape.)

            Nonetheless, California quickly passed laws and ballot measures to conform to the SCOTUS decision, deleting the intent to kill requirement for felony murders and installing the “major participant” / “reckless indifference” standard for aiders.

            Recently, Governor Brown signed into law SB 1437 that further amends felony murder law. Although it retains the “reckless indifference” test, it does do two things that might weaken the severity of the f-m law.

           It purports to negate the doctrine that courts have applied for many years: that a felon is liable for deaths that are a “natural and probable consequence” of the felony. This standard was applied in response criticism of the rule: that it shouldn’t be applied unless a resulting death is “foreseeable.” But these terms are so vague that they lead to results that are so variable that similar acts are treated differently in different cases.

            The key provision that may have the greatest effect is that it is specifically intended to be retroactive. All who were convicted of first or second degree felony murders on a theory that the deaths were a natural and probable consequence of their actions, can petition for rehearing. The prosecutor would have to prove beyond a reasonable doubt that they had the intent to kill or were major participants who acted with reckless indifference to life.

            How prosecutors, judges, and appellate courts deal with this will be the sub
ject of a new body of jurisprudence.

            Two things are certain: first, of course, there will be more work for lawyers.

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