Arabian Could Add Flourish to State High Court : Judiciary: The legal writings of Deukmejian’s nominee are unusually colorful and blunt.

SAN FRANCISCO —  Whether writing about police searches or the death penalty, rape-law reform or the suffering of his Armenian forebears, state Appellate Justice Armand Arabian has proved an unusually feisty, outspoken jurist.

Now awaiting a confirmation hearing this week on his nomination to the state Supreme Court, Arabian could turn out to be one of the most colorful justices to sit on the court in recent memory, a review of his opinions and articles reveals.

While much judicial writing is dry and dense, Arabian often has written with an expansive flourish to underscore his strongly held legal views.

The Arabian style was no more evident than in a 1987 opinion by the Court of Appeal in Los Angeles when he reversed a conviction for possession of cocaine because of an illegal warrantless search by authorities of a naval housing facility.

“A military raid into enemy territory, authorized by a commander, has victory as its objective,” wrote the justice, himself a former Army officer and paratrooper. “Unfortunately, the victory described here, occasioned by a raid into the streets of the city, was but a hollow one. . . . Unrestrained and errant tactics by men of zeal, which circumvent the most basic legal protections, are not only fruitless, but, even worse, are not consistent with the high ideals of military service.”

As a trial court judge, Arabian’s blunt remarks twice drew mild rebukes from reviewing appeals courts. In a 1981 murder case, he asked a witness to rate the female defendant’s sexual performance. And in a 1979 pretrial hearing, he called a defendant who had cursed him a “coward” and told the man to “enjoy” the lengthy prison term he faced. Neither remark, however, affected the outcome of the case--nor presented an obstacle to his subsequent confirmation to the state Court of Appeal.

Arabian, nominated Feb. 3 by Gov. George Deukmejian, is scheduled to appear Thursday in Los Angeles before the state Judicial Appointments Commission, composed of Chief Justice Malcolm M. Lucas, Atty. Gen. John K. Van de Kamp and senior presiding Court of Appeal Justice Lester W. Roth. If confirmed, Arabian will be sworn in immediately to the state’s high court.

Legal authorities predict Arabian will fit comfortably with the moderately conservative Deukmejian appointees who have led the court in the last three years. But however he rules in a particular case, he is likely to be blunt.

“His style tends to be rather colorful--even bombastic at times,” says UC Berkeley law professor Stephen R. Barnett, who has studied dozens of justices’ opinions. “It’s nice to see that it’s a judge doing the writing of an opinion and not simply his law clerk. A great majority of the California Supreme Court opinions read as though they were turned out by a colorless staff attorney.”

While stressing that expansive legal writing can be overdone, Barnett notes that “creative and graphic expression” in a judicial opinion can help clarify the law for lower-court judges, lawyers and litigants.

Because death sentences in California are appealed directly to the state Supreme Court, justices on the intermediate appellate courts rarely can comment on the volatile subject of capital punishment. But there are some exceptions--such as when a defendant in a capital case has received the alternative sentence of life in prison without parole.

In such instances, Arabian has ruled both for and against defendants, giving no indication that he would be either strongly pro-prosecution or pro-defense on the dozens of capital cases that go before the high court each year.

In one case, for example, he ruled that, before trial, prosecutors could reverse their previous position and seek the death penalty when investigators acquired more evidence about the circumstances of the crime. In another, he held that the prosecution could not seek the death penalty at the retrial of a defendant who had won a reversal of a conviction in which he was sentenced to life in prison.

But Arabian has made it clear that he believes capital cases, because of their life-and-death nature, are entitled to careful scrutiny by the courts.

In barring retroactive application of a state Supreme Court ruling that juries could return death verdicts without finding an intent to kill, Arabian declared: “As a humane nation, we take special care when an individual, no matter how culpable, may face the ultimate sanction of the death penalty: ‘There is no question that death as a punishment is unique in its severity and irrevocability.’ ”

On another front, Arabian won wide acclaim from women’s groups for his refusal as a trial judge in 1973 to follow a since-discarded requirement of cautioning jurors in rape cases to view a female victim’s testimony with special caution. Arabian called the instruction “sexist garbage,” saying it was “demeaning, arbitrary and contrary to the intent of the law.”

Critics have contended that the instruction unfairly undermined a victim’s testimony--and the state Supreme Court subsequently upheld Arabian’s ruling, prohibiting the instruction in future cases.

The justice also has written numerous articles calling for strengthened rape laws and added protections for rape victims.

“We were quite thrilled when he was selected for the Supreme Court,” says Marjorie Laird Carter of Santa Ana, president of California Women Lawyers. “He has a long history of being supportive of women’s rights--and men’s rights, too--and (has) been very supportive of women attorneys who have applied for positions on the bench.”

Arabian’s plain-spoken manner, however, became an issue in the two cases where, as a trial judge, he drew modest criticism from appeals courts.

A state Court of Appeal reviewing the murder case later chided Arabian for his “unfortunate and apparently gratuitous” remarks. But the court rejected claims that the statements about the male witnesses’ sexual relationship with the defendant constituted misconduct, noting that the defense had sought to emphasize the sexual relationship of the parties involved. Arabian later defended the questioning as proper in the unusual circumstances of the case, saying it was a valid attempt to elicit relevant information from a witness.

In the other case, Arabian had a sharp exchange with a defendant who was asking at a hearing that another lawyer be appointed to represent him at trial. The defendant uttered obscenities at the judge--and Arabian called him “a coward” and a “disgrace,” among other things. “You are going to be doing a lot of years, partner,” said Arabian. “Enjoy.”

Later, a state Court of Appeal called Arabian’s remarks “unfortunate,” and said they “certainly should not have been made.” But the statements did not deny the defendant a fair trial, the court held, because Arabian had not presided over the man’s trial and took no part in deciding the defendant’s guilt or his sentence.

Arabian, who grew up in an Armenian neighborhood in New York, also has written articles about his Armenian heritage, telling how his family was victimized by Turkish oppression and how his parents had struggled to find a new home in America. In an article for The Times in 1979, he commemorated the 64th anniversary of the Armenians who perished at the hands of the Turks, describing poignantly how his grandfather died before a firing squad and how his grandmother was marched to a river bank and forced to choose which of two sons to take along as she swam for her life.

“She faced an impossible dilemma,” Arabian wrote. “She could save the life of one son by swimming across the river with him--but she would have to leave the other son behind. There in the middle of the land of death, she chose the eldest, 11-year-old Ovannee, my father. Helping each other, they swam across. Left on the river bank was 4-year-old Oskian, standing with his arms outstretched, crying for his mother and brother. He never saw them again.”