Report Responds to Criticism of Death Penalty Rulings : Bird Camp Claims Smear by Prosecutors

After eight long months of work, Chief Justice Rose Elizabeth Bird’s campaign released a highly detailed report Tuesday declaring that she had been unfairly and maliciously smeared by California’s district attorneys for her handling of death penalty cases.

The 205-page account offered a point-by-point response--on legal matters both big and small--of a highly publicized and unprecedented “white paper” that the prosecutors issued in May, 1985. The district attorneys, whose professional association had never before entered electoral politics, accused Bird and the Supreme Court of systematically blocking executions. And their account delved into bloody details of 30 murders to illustrate what kinds of criminals were having their death sentences reversed by the court.

Anthony Murray, the former State Bar Assn. president who leads Bird’s reelection effort, said the belated response from her side will serve as a “centerpiece” to the campaign, even if a score of recent and controversial death penalty rulings are not covered by the new document, entitled “Let the Record Reflect.”

Murray charged that prosecutors engaged in “errors, distortions and convenient omissions” and said anyone with the time or interest to read the Bird campaign response will see the chief justice not flouting the law but painstakingly following it to make sure that California’s death penalty statute is constitutional before executions begin.

The California District Attorneys Assn. welcomed the debate.

“I’m absolutely confident that when everything is weighed--what they have said and what we have said--that it won’t detract from our central message, namely that Chief Justice Bird has failed in her duties,” Executive Director Greg Thompson said Tuesday.

So far, the Supreme Court has overturned 52 of 55 death sentences since capital punishment was reinstated in California in 1977. Bird, the lightning rod for much of the criticism against the court, is alone among the justices in voting to reverse every one of the 55. The three that were upheld remain on appeal.

“I think the voters of this state are intelligent,” Murray said at a press conference announcing the release of the report. “I think they’re well-informed. I think they’re capable of becoming informed and want to be informed. . . . They do not want the chief justice to affirm death sentences just for the sake of affirming death sentences or to save her own political neck.”

He added that only five or six disputed issues arising from the state’s “very badly written” capital punishment law are responsible for all the reversals, and he reiterated that Bird is prepared to vote in favor of the death penalty as soon as these matters are resolved and a case reaches her in which a defendant received a fair trial.

Perhaps the most serious dispute between the two camps is over a pair of murder cases. The prosecutors contend that the Bird court reversed death sentences in the two cases for reasons that were blatantly contradictory.

In the first case, according to the prosecutors, the court said a defendant was not given a fair trial because his request to present an alibi defense was not followed by his lawyer. The court said the attorney erred by choosing an insanity defense instead. In the second case, a defense lawyer followed a defendant’s wishes and pursued an alibi defense, only to be found incompetent for not overruling his client and presenting an insanity defense.

The prosecutors called it an “impossible bottle to escape.” Other anti-Bird campaign organizations have seized on this contradiction as evidence of the lengths to which the court will go to avoid upholding a death sentence.

Bird’s report, prepared by a team of lawyers under the direction of one of her former law clerks, said the prosecutors “totally mischaracterized” the first case.

‘Cynical Creation’

“There is no inconsistency. . . . The ‘impossible bottle to escape’ is a cynical creation of the authors of the white paper. It is based solely on a thorough distortion of the facts and rulings in these two cases,” the report said.

Another serious dispute involves a far-reaching 1983 case that resulted in a series of death penalty reversals. The Bird camp charged in the report that prosecutors unfairly accused the court of concocting a new obstacle to the death penalty in the decision, called the Carlos ruling. In the ruling, the court said that juries in capital cases must make a specific finding that a defendant “intended” to kill, not just that he or she did kill.

The new report noted that this protection for accused criminals was promised to California voters by framers of the law in a ballot argument preceding a public vote on the law.

That it took Bird’s campaign eight months to review the prosecutors’ report and respond in detail appears to fit the chief justice’s pattern of not engaging in traditional electoral politics, in which quicker images and broader themes are more commonplace than legal briefs and footnoted case histories. Murray said the approach was required because it is easier to attack the chief justice as soft on crime than it is to defend her as an upholder of the complex body of state laws.

Some of the Bird campaign’s complaints about the prosecutors’ white paper were of a technical nature that did not seem to bear on the principal questions of the campaign. The district attorneys, for instance, were faulted for misstating the vote of a colleague in one case.

And the Bird report strongly objected to a statement by prosecutors that “Bird and her allies on the Supreme Court have refused to sanction the execution of any convicted murderer.”

The report said in response: “Unquestionably, executions are coming to California.”