Death Row--Fate of 130 May Rest on Just 1 Word

SAN FRANCISCO —  The question of whether as many as 130 men live or die may turn on a single word. The men are inmates on San Quentin’s Death Row and the word is shall.

The word is at the heart of California’s death penalty law. Judges in nearly every capital punishment case tried under the 1978 law gave juries the same command:

Jurors “shall impose a sentence of death if (they conclude) that the aggravating circumstances outweigh the mitigating circumstances.” A mitigating factor might be a defendant’s bad childhood, while the crime’s viciousness and the defendant’s criminal convictions are counted as aggravating factors.

Now, as a result of a state Supreme Court ruling on Thursday, it is clear the justices believe the word shall misled jurors who returned some death verdicts thinking they had no choice but to impose death.

May Overturn Sentences

And if attorneys handling the appeals of Death Row inmates can persuade the high court that jurors did not realize they had an option of returning the lesser verdict of life imprisonment without parole, the court may overturn the sentences.

Although prosecutors initially thought the ruling was a victory--the court did uphold the sentencing phrasing as constitutional--they began changing that view on Friday, saying the ruling could become a precedent to overturn scores of death sentences.

“It puts in jeopardy about 130 cases,” said Assistant Atty. Gen. Steve White, in charge of the criminal division.

“I don’t want to be all gloom,” White said, noting that the court made clear by finding the phrasing to be constitutional that it probably would not reverse all such cases. “But based on my reading of this case, I cannot be optimistic.”

Defense Lawyers Disagree

Defense lawyers, however, doubted the ruling will result in what Dennis Riordan, who has handled several death penalty appeals, termed “wholesale reversals.”

Pointing out that the court upheld the formula as constitutional, Riordan said:

“It’s sort of like asking whether the glass is half full or half empty. They have chosen to look at it more favorably than not. They have put the burden on defendants to prove that it hurt them.”

Indeed, the court found grounds other than the sentencing formula to reverse Thursday’s case. Justices ordered a resentencing of con

victed murderer Albert Greenwood Brown because the trial judge erred by failing to tell jurors that they could consider sympathy for him in reaching their verdict.

Jurors Confused?

While it is not yet known how many cases will be reversed as a result of Thursday’s ruling, it is clear that the word shall and whether its use confused jurors will be crucial in the court’s determination. The court said in its opinion it will look at each case to discern if the formula confused jurors.

The formula, with its use of the word shall, is the key difference between the 1978 law--one that was passed by an initiative sponsored by then-Sen. John Briggs that sought to broaden California’s death penalty--and the law it replaced.

The earlier, short-lived death penalty statute was passed by the Legislature in 1977 and required that jurors merely consider all the evidence they had heard before deciding whether to impose death or life without parole.

In its ruling Thursday, the court said judges in the future must make clear to jurors that as they deliberate the fate of convicted murderers they retain the option of whether to impose death or life in prison without parole.

Conflicting Rulings

Questions over California’s death penalty sentencing formula in part reflect the fact that there are conflicting rulings by the U.S. Supreme Court.

In several cases, the federal court has said jurors must have guidelines in deciding whether to impose death. In fact, the high court struck down death penalty laws nationwide in 1972 because there were virtually no guidelines for jurors in death cases.

But while the high court has said jurors must have guidelines, it has also said that they must be able to use their own discretion in deciding whether to impose death.

California’s death sentencing formula suggests to jurors that they do not have discretion in capital cases, defense attorneys say, citing several cases in which jurors became confused.

Note Sent to Judge

Defense attorneys point to several cases in which jurors became confused. In a 1982 Placer County case, jurors sent the judge a note asking, “May we show mercy and give life without possibility (of parole) even though we feel aggravating outweighs mitigating?”

The judge replied by restating that if aggravating circumstances outweigh mitigating, “you shall impose a sentence of death.” Within two hours, the jury returned a death verdict. The case is pending before the state Supreme Court.

“That one word (shall) makes all the difference,” said Los Angeles County Deputy Dist. Atty. Lonnie Felker, who has tried several cases in which he sought the death penalty.

Like other prosecutors, Felker said that in arguing for a death verdict, he often refers to the word shall, saying that if jurors find that the bad outweighs the good “the law imposes a duty on them” to return such a verdict.

Suggests It’s Mechanical

But in the view of defense lawyers, shall suggests to jurors that the imposition of the death penalty is mechanical.

“The prosecutors try to get away from all emotion,” said Los Angeles County Deputy Public Defender Stuart Rappaport. “They take a three-piece, button-down view: If aggravating outweighs mitigating, you have to impose death.

”. . . If you can get 12 people to agree that death is appropriate, OK. But it should be based on a consensus, not some phony formula.”

Lawyers will not know the impact of Thursday’s ruling until the court interprets it further and applies it to other cases, said Edward P. O’Brien, who is in charge of death penalty cases for the attorney general’s office. That will take several months, perhaps longer.

But after studying the 49-page majority opinion, O’Brien said the ruling may become a precedent to reverse “a significant number” of pending appeals.

“It is pretty clear there is going to be a significant number of reversals . . . for the simple reason that this instruction was given in the vast majority of cases,” O’Brien said.

“They (the justices) are going to look at one thing and one thing only and that is the district attorney’s argument. If the prosecutor at all makes reference to those particular (jury) instructions or uses them in his argument, then the likelihood of reversal is increased.”