Public opinion sets bounds to every government, and is the real sovereign in every free one.
– James Madison
A specter is haunting California-the specter of Rose Bird. Under her watchful eye the California Supreme Court has mounted a sustained assault against the principles of constitutional government and the rule of law. It is merely an exaggeration to say that the only thing that stands between the people of California and the state of nature is this November's judicial confirmation election.
California's first constitution, like that of most other states, provided for popular election of judges. The present system of judicial selection was instituted in 1934 as part of the "good government" movement. It was actively supported by California's leading Progressive, Earl Warren, who touted it as a measure designed to combat what was then considered to be an alarming increase in the crime rate abetted by a corrupt judicial system! Two constitutional initiatives were placed on the ballot in 1933; one called for the appointment of trial judges and their confirmation by popular election, the other provided the same mode of selection and confirmation for appellate judges. Of the two initiatives, only the latter was approved by the voters. Court of Appeals judges, including members of the Supreme Court, serve twelve-year terms. When vacancies occur, the Governor nominates a replacement who must then be confirmed by the three-member Commission on Judicial Appointments. This commission is composed of the Chief Justice of the Supreme Court, the senior appellate judge in the district where the appointment is made, and the Attorney General. After appointment the judge must be confirmed in the next general election following appointment, again at the expiration of the original twelve-year term, and every twelve years thereafter. Chief Justice Bird was appointed by Governor Brown in 1977, faced a confirmation election in 1978 in which she narrowly escaped defeat (48.3 percent of the people voted against her confirmation), and faces reconfirmation in November 1986, the expiration date of the twelve-year term of her predecessor. No appellate judge or Supreme Court justice has ever been turned out of office in a confirmation election.
Bird and her supporters claim that November's election will compromise judicial independence. Judicial independence is, Bird maintains, the foundation for the rule of law. It is undoubtedly true that an essential ingredient of judicial power is independence. But, we must ask, "Independence from what?" Bird answers unequivocally: "Independence from popular majorities." Why? Because the majority represents only a special interest, and the rule of law must represent the common good. Bird thus sees the majority as nothing more than another special-interest group, aggrandizing its interest at the expense of the various "discrete and insular minorities" in society. Whereas it was once thought that the majority in a pluralist society could rule in the interest of the whole, now the majority is seen by Bird and her cohorts to be the principal obstacle to the promotion of the public interest. If, therefore, democracy is to work for the common interest, the essential task of ruling must be given over to a vanguard who can act in the majority's stead; i.e., act in the way that the majority itself would act if it were uncorrupted by its own particular interests. In Bird's view, the courts must fill the role of the public-spirited vanguard; this reasoning has provided the justification for the Bird Court's wholesale rewriting of the Constitution and duly enacted laws to comport with its own notion of "fairness" and "justice."
Thus we are told not to judge judges on the basis of their decisions or their judicial philosophy, but only on their physical and mental competence. Mere disagreement with the decisions rendered by the judiciary or with the political philosophy of the judges will allegedly compromise judicial independence. We are instructed by the most enlightened opinion that we must vote to reconfirm Rose Bird however odious her decisions may be and however ill-suited her judicial philosophy is for the preservation of free government. According to the liberal vanguard, judicial independence, not the consent of the governed, is the bulwark of a free government. In short, the voters are asked to make a politically neutral decision to preserve the "independence" of a manifestly political Supreme Court. Since constitutional devices already exist to disqualify judges for mental and physical incompetence, it is only too obvious that confirmation elections were intended to have another purpose. If the voters cannot make electoral judgments based on what the judges decide and what those decisions indicate about a judge's understanding of constitutional principles, what is the purpose of confirmation elections? What, indeed, is the purpose of the judiciary?
But, of course, an independent judiciary, if it means anything at all, means only that the judiciary should not be subjected to the temporary passions or prejudices which may from time to time actuate a majority. The Constitution represents the superior will of the people because, in John Marshall's words, it embodies the "original right" of the people to form the "fundamental" and "permanent" conditions for their self-governance. And this will, Marshall continued, was intended to provide "a rule for the government of courts, as well as of legislatures." The will of any subsequent majority formed according to constitutional procedures does not have the same authoritative status as that superior will, which created the Constitution. The Court, of course, must intervene against the will of such subsequent majorities for the vindication of individual constitutional rights, or to protect the Constitution itself from being violated by these transient majorities. This is the primary role of the judiciary in constitutional government. Judicial independence cannot mean that the judiciary has sovereign power to reject the superior will of the people as embodied in the Constitution, or expressed in such laws that are, by the Court's own admission, made pursuant to the Constitution. This would usurp the people's "original right," a right that rests at the very foundation of constitutional government.
The people may not have the technical expertise to be judges themselves, but it does not require technical expertise to evaluate the performance of judges or other experts. Associate Justice Stanley Mosk has compared the complexity of the Court's decision-making process to brain surgery. We would not, he argues, presume to advise a brain surgeon on the technical intricacies of his art. And by parity of reasoning we should not presume to advise judges about the performance of their equally intricate tasks. But must we ignore the results? Are we obliged to place ourselves in the care of a brain surgeon who has never had a patient survive one of his operations? Surely it does not require the expertise of a brain surgeon to make intelligent judgments about his performance. After all, how much expertise does it require to know the difference between a dead man and a living one? It requires no more expertise to know the difference between judicial independence and judicial tyranny. It is disingenuous-if not dishonest-to argue that public debate on matters of pressing public concern will compromise judicial independence. Voters are perfectly competent to decide matters which are subjected to vigorous public debate-and this November "the people shall judge."
The Death Penalty
Despite the Chief Justice's protestations to the contrary, the death penalty is the issue of the confirmation election. This issue touches upon the fundamental principles of constitutional government and the rule of law. Long ago, John Locke made the salient observation that "Political Power" or "Sovereignty" comprehends the "Right of making Laws with Penalties of Death." And, as Locke also noted, in every free government the people are the ultimate sovereign. A political community without sovereignty is a mere solecism. Well-defined sovereignty is therefore a necessary-although not sufficient-condition for the rule of law. The people of the state of California have expressed overwhelming support for the California death penalty law. Polls indicate that 86 percent of Californians believe that "some crimes are so awful that committing them revokes all human rights, including the right to life." In a pluralistic and heterogeneous society such as California, this is virtual unanimity. But the liberal vanguard refuses to acknowledge the legitimacy of this opinion.
Justice William Brennan of the United States Supreme Court recently expressed his "fixed and immutable" opinion that it was a "fundamental premise that even the most base criminal remains a human being possessed of some potential, at least, for common human dignity," Thus, as Brennan reasons, "the calculated killing of a human being by the State involves, by its very nature, an absolute denial of the executed person's humanity," The State must therefore "treat its citizens in a manner consistent with their intrinsic worth as human beings . . . so as not to be degrading to the very essence of human dignity." Even conceding, merely for the sake of argument, that the language of human dignity might be inferred from the Constitution, Brennan is totally mistaken about what constitutes human dignity. He seems never to have considered the fact that a country that honors those who, by their actions, have demonstrated no regard for human dignity is dishonoring human dignity itself. If the Constitution stands for the ultimate human dignity of the individual, as Brennan insists, then according honor to those who refuse-by murder, rape, torture, or other inhuman acts-to recognize the dignity of others would simply convert the Constitution into a suicide pact. A true regime of human dignity honors those who demonstrate a regard for human dignity by honoring the laws and the Constitution, and dishonors those who are either unable or unwilling to recognize the human dignity or human rights of others. The people of California, however, have clearly demonstrated that they understand the true meaning of human dignity: A recent poll shows that 71 percent of the citizens of California believe that "the death penalty affirms the value that society places on life."
In People v. Andersen (1972), the California Supreme Court invalidated the death penalty law as a violation of the California Constitution's prohibition against "cruel or unusual punishment." Since the United States Supreme Court had never declared the death penalty unconstitutional under the Eighth and Fourteenth Amendments' ban on "cruel and unusual" punishment, the California Court relied upon a doctrine known as independent state grounds. This doctrine allows the California Court to make more liberal or expansive interpretations of provisions in the California Constitution which are similar to those in the U.S. Constitution. This decision was almost immediately overturned by the people of California when they passed a death penalty initiative in the election of November 1972. Just prior to this election, however, the United States Supreme Court handed down a decision, Furman v. Georgia, which invalidated death sentences as "cruel and unusual punishment" where sentencing procedures allowed "untrammeled discretion" to judges or juries in imposing sentences. The California legislature responded by passing another death penalty statute in 1973. In an attempt to satisfy the requirements of Furman, the new statute left no discretion to juries. Three years later in Gregg v. Georgia,the U.S. Supreme Court invalidated the use of mandatory death sentences which disallowed the consideration of mitigating circumstances. The California Supreme Court immediately seized upon this rationale in Rockwell v. Superior Court (1976) to strike down California's mandatory death penalty statute. In 1977 the state legislature responded once again, passing a new death penalty statute over the veto of then-Governor Jerry Brown. In 1978 the people of California saw fit to strengthen the death penalty law by passing the Briggs Initiative. In People v. Jackson (1980) this saga only apparently came to an end when, after much equivocation and tergiversation, the California Supreme Court upheld the constitutionality of the 1978 law over the vigorous dissents of both Chief Justice Bird and Justice Mosk.
The Death Penalty and Procedural "Fairness"
To date no death sentences have been carried out. Of the 55 death penalty cases that have gone to the California Supreme Court on automatic appeal, only three have had the death sentence affirmed, and in these three further appeals are pending. In five of these cases, death sentences have been overturned twice. Although Chief Justice Bird is the only member of the Court who has voted to overturn the death penalty in all 55 cases, the Court generally has shown a reluctance to affirm death penalty sentences which borders on dilatoriness. Nevertheless, the people of California have been assured that these sentences will be carried out as soon as the procedural defects in the trial proceedings have been corrected. As Chief Justice Bird has stated, "You don't execute somebody unless you're sure that the trial's been fair and that they have been tried under constitutional law. I think the people of the state of California have a right to be sure that when a person goes to his death here, he will go under a constitutional law after a fair and impartial trial."
But the facility with which the Bird Court creates new procedural requirements makes it unlikely that there can ever be a "fair and impartial trial." It is only a slight exaggeration to say that no trial judge in California knows-or can know-what a procedurally fair trial is. The Court, under the leadership of Bird, counts every procedural error as a material defect in the outcome of the trial, regardless of whether the error was harmless or not. This manner of proceeding, of course, manifestly violates Article VI, Section 13 of the California Constitution which provides that "No judgment shall be set aside . . . for any error as to any matter of procedure unless . . . the error complained of has resulted in a miscarriage of justice."
"Intent to Kill" Rulings
No clearer example of the Bird Court's use of procedures to defeat both the letter and the spirit of the law can be found than its decisions involving the issue of "intent to kill" in felony murder cases. The 1978 Briggs Initiative deleted the intent provision of the 1977 death penalty law in certain "special circumstances" cases, those involving multiple murders and murders committed in the course of a robbery, burglary, rape, arson, and child molesting. It also directed that a jury must impose either the death penalty or life imprisonment without possibility of parole in any case involving one or more such special circumstances.
In 1983 the Bird Court handed down its decision in People v. Carlos. Justice Allen Broussard, writing for a majority which included Bird, Mosk, and Cruz Reynoso, argued that the Briggs Initiative could not have intended to delete the intent requirement from the prior law. Broussard's main line of reasoning was as follows: Under the 1977 law, felony murders not involving special circumstances (and which do not therefore carry the death penalty) require a showing of intent to kill. If the 1978 Briggs Initiative were read as deleting this requirement in special circumstances cases, then we would be faced with the anomaly that murders committed under special circumstances which may be accidental could be punished by death whereas those non-special circumstances felony murders which were proved to be intentional could not be punished by death. Disdaining to interpret the plain language of the Briggs Initiative, Broussard wrote that "the adoption of a law to permit infliction of the death penalty upon an accidental killer would be a momentous step, raising grave moral questions." But Broussard failed to recognize that the appropriate comparison is not between an intentional murder and an"accidental" one. Rather, it is between an intentional murder and one which may have been unintended but was committed in the course of "an inherently dangerous felony." Someone who intends to commit an armed robbery must also be presumed to have intended-and therefore bear responsibility for-whatever occurs in the course of the robbery. A murder committed under these circumstances can hardly be described as "accidental." Once this fact is realized, there is, of course, no anomaly which could possibly offend the sensibilities of anyone who recognizes the importance of individual moral responsibility to the rule of law.
Because the Briggs Initiative required a showing of intention with respect to accomplices in special circumstances felony murders, Broussard assumed that the law must be read to extend intent requirements to actual killers as well. But he relied on the dishonest use of legislative history to support his assertion. During the election campaign, opponents of the Briggs Initiative wrote that the proposed change in the intent standards would make a person who unknowingly loaned a screwdriver to his neighbor, who then used it to commit a special circumstances murder, himself subject to the death penalty as an accomplice. Supporters countered that this was a misinterpretation of the initiative because there was a clear requirement to prove intent on the part of aiders or abettors to a killing.
Broussard calculated that because the language relied upon by the proponents of the Initiative in support of their argument also seemed to include actual killers, the framers of the initiative must have included those killers within the intent requirement as well. The initiative reads that "every person whether or not the actual killer found guilty of intentionally aiding, abetting . . . or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole." As Justice Frank Richardson pointed out in his powerful dissent, the plain import of this language, when read in its appropriate context, applies the intent requirement only to accomplices and not to the actual killer. The provision could not possibly refer to the actual killer because, in terms of the explicit language used, the killer would have to be at one and the same time both accomplice and killer. Richardson went on to characterize the Court's interpretation as "patently incorrect, adding, as it does, an element of intent, which the sovereign people specifically deleted from prior law by adopting the 1978 initiative measure." Richardson continued his argument, touching not only upon the major failings of this opinion, but also on the general ideological predisposition that has come to characterize the vast majority of the Bird Court decisions:
In an age when the state and nation are awash with murders and violent felonies, it is within the power of the Legislature or the people themselves by initiative to judge which felonies are deemed more serious, and to include only those offenses within the felony murder special circumstances statute. . . . The majority [of the Court] by interpretation has recast the 1978 death penalty law in a manner which effectively nullifies the felony murder special circumstances provision, thereby requiring reversal and retrial of numerous cases presently pending on appeal. . . . In doing so, the majority has ignored sound principles of statutory interpretation and constitutional law, and has thwarted the people's will in their-adoption of the 1978 law.
Eight months later, People v. Garcia made Carlos retroactive, requiring the retrial of 95 death penalty cases and 85 life-without-possibility-of-parole cases. Having established an entirely new intent-to-kill requirement that was not mandated by the terms of the Briggs initiative, and in fact was conspicuously excluded by that initiative, the Bird Court has proceeded to overturn a number of death penalty sentences on the basis of what it now terms Carlos-Garcia error. InPeople v. Fuentes-one of the so-called "New Year's Eve Massacre" cases in which the Bird Court overturned 11 death sentences on December 31, 1985-the Chief Justice remarked that "a finding of intent to kill was by no means a foregone conclusion." Fuentes had killed a Brinks guard during the course of an armed robbery, firing five shots into the guard's chest from close range. Bird contemptuously dismissed any presumption of intent arguing that, despite evidence to the contrary, "the jury might reasonably have found that the shots were fired with the intent to wound the guard-so that he would release the moneybags-so that the robbers could make their escape."
In a similar case, People v. Boyd (1985), the jury had found the defendant guilty of murder during the course of a robbery. Justice Broussard, writing for a unanimous court that included Bird, Mosk, Reynoso, Joseph Grodin, and Otto Kaus, reasoned that:
the way in which defendant killed . . . suggests that defendant intended the killing. Defendant shot [the victim] in the heart from a distance of a few feet, then fired five more shots when [the victim] tried to escape. Nothing in defendant's conduct at the time of the killing or afterwards suggests that defendant pulled the trigger accidentally, that he intended only to frighten or to wound the victim, or had any intent except to kill.
Nevertheless, Broussard concluded that the jury verdict "did not necessarily establish that defendant intended to kill" because the trial court did not instruct the jury that intent to kill was a necessary ingredient to prove special circumstances. The reason the trial court did not do so, of course, was that the trial took place before the Court's decision inCarlos. The verdict was overturned even though a unanimous court agreed that there was absolutely no doubt about the intention of the defendant to commit felony murder and that the instructions to the jury on the necessity of finding intent could not possibly alter the Outcome of the trial.
In another "New Year's Eve Massacre" case, People v. Hamilton, the Court reversed the death sentence of a defendant who had been convicted of murder during the course of a robbery. The victim's body had also been dismembered. Medical experts testified that they were unable to determine whether "the victim was alive or dead when her head was cut off." The Court set aside the death sentence because, once again, the trial judge failed to instruct the jury on the necessity of proving intent to kill in felony murder special circumstances cases. Justice Kaus's irrefragable logic led him to conclude that "although the evidence would arguably support a finding of intent to kill had proper instructions been given, it manifestly does not establish intent to kill as a matter of law. The victim might have been killed accidentally, with defendant deciding afterwards to mutilate the body in an attempt to prevent identification." Justice Malcolm Lucas responded in an acerb dissent, noting that "We cannot reverse a judgment, even a death penalty judgment, based on nothing more than mere speculation or surmise." "It is simply inconceivable," he continued, "that if the killing were indeed 'accidental,' defendant would have neglected to attempt to prove that fact" at trial, since it would have been a "strong mitigating factor at the penalty phase." But-we may add-who can possibly fail now to see that what is inconceivable has become the stock in trade of the Bird Court.
In still another "New Year's Eve Massacre" case, People v. Hamilton (no connection to the above case), the Court held that an intent to kill could not be inferred in a multiple shotgun murder where three victims were shot and killed at close range, requiring that the shotgun be reloaded four times. In dissent, even liberal justice Grodin pointed out the absurdity of an adherence to the Carlos-Garcia intent doctrine:
I conclude it is inconceivable that any reasonable juror would have found defendant lacked intent to kill. . . . Given this methodical sequence of events, the evidence of planning, and the unusually solid victim-witness and expert witness testimony supporting these facts, nothing defendant could possibly have said or produced, and nothing within the realm of reasonable speculation as to that evidence, could possibly have detracted from the conclusion that defendant intended to kill.
Thus Grodin, in a case signaling his belated attempt to distance himself from the Bird majority, argued that this so-called Carlos-Garcia error, if an error at all, was merely a harmless error.
In the most bizarre of the "New Year's Eve Massacre" cases, People v. Silbertson, the Bird Court reached new heights in refusing to allow the slightest hint of common sense to enter into its deliberations. Defendant was charged with felony murder in the course of a robbery. Defendant's counsel, however, argued that it was not a murder committed in the course of a felony (robbery), but in fact an intentional murder to which the act of robbery was incidental-an attempt to disguise the real motive of the murder. Using this argument, defendant's counsel hoped to avoid a death penalty verdict by showing that no special circumstance existed. Counsel therefore had to present a strong case at trial that defendant had actually intended to murder the victim, and had never intended to rob him. Counsel argued this intent theory vigorously to the jury: "Intent? . . . the intent here is pretty darned clear. . . . And to ignore that is to ignore the realities here, ladies and gentlemen." Despite counsel's rather ingenious attempt to save his client from a death sentence, the jury was unconvinced and convicted the defendant of felony murder committed in the course of a robbery and sentenced him to death. On automatic appeal to the Supreme Court, the death sentence was vacated. In an opinion written by Kaus and joined by Bird, Reynoso, and Broussard, the Court noted that "the question of intent was indeed raised, though in a perverse fashion." Nevertheless, the defense counsel was "unaware that intent to kill was an element of the felony murder special circumstance" and therefore may have indeed "failed to present all credible evidence which might negate the element of intent-for example, additional evidence to the effect that the actual shooting was accidental." In dissent. Justice Mosk was forced to point out the obvious fact that a retrial on the issue of intent "would be an aimless exercise."
The issue of jury instruction provides additional insight into the ideological predisposition of the Bird Court and the extreme lengths to which it will go to circumvent California's duly enacted death penalty statute. The leading case is People v. Ramos (1982) in which the Court held a provision of the Briggs Initiative unconstitutional as a violation of due-process rights guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. At issue in Ramoswas the jury instruction required by the Briggs Initiative that all jurors be told that "the Governor has the power to render the defendant eligible for parole if the jury does not vote to execute him." The Court, in an opinion by Justice Matthew Tobriner (joined by Bird, Mosk, Kaus, and Broussard), argued that "the jury's induced consideration of this possibility leads it into an area where it has no guidelines, and in which its conclusion must be entirely speculative" because it may be based "on the jurors' perception of the present or some future governor's philosophy or possible action." According to the Court, this situation is compounded by the fact that the Briggs instruction does not mandate that the jury also be instructed that the Governor can commute a death sentence to one of life in prison. Justice Richardson in dissent pointed out a logical fallacy in the majority's reasoning:
The majority suggests . . . that the instruction mandated by the 1978 law is incomplete in its failure to advise the jury that the Governor may commute a sentence of death as well. . . . It is difficult to understand how or why a defendant would ever desire such an instruction, which could only lead the jurors to minimize the seriousness and severity of the death penalty.
This decision was appealed by the State of California to the United States Supreme Court. The High Court, in an opinion written by Justice Sandra Day O'Connor, agreed with Justice Richardson's dissent, finding that the Bird Court's contention that the Federal Constitution had been violated was "puzzling." This time it fell to the United States Supreme Court to point out the obvious: "We are not convinced that the Briggs Instruction alone impermissibly impels the jury toward voting for the death sentence. Any aggravating factor presented by the prosecution has this impact." As the Court concluded, "The State is constitutionally entitled to permit juror consideration of the Governor's power to commute a life sentence. This information is relevant and factually accurate and was properly before the jury."
Undeterred, the California Supreme Court reheard the Ramos case in 1984. Noting that the United States Supreme Court had disagreed with its earlier decision, the Court concluded that the Briggs instruction, even though it may not have violated the Federal Constitution, nonetheless violated the California Constitution's due process guarantee of "a fundamentally fair decision-making process." But as Justice Lucas pointed out in dissent, the majority was simply dishonest in its attempts to rely upon the California Constitution to uphold its idiosyncratic view of fundamental fairness. This holding, he wrote,
frustrates the spirit, if not the letter, of the very Constitution on which the majority so belatedly relies. Article I, Section 27 of the California Constitution, adopted in 1972 by the people of this state, was intended to reinstate the death penalty "to the extent permitted by federal constitutional law." Federal constitutional law, as interpreted by this nation's highest court, now clearly permits the jury in a death penalty case to be informed of the Governor's commutation power. Accordingly, by reason of Article I, Section 27, we have no authority to impose additional restrictions or procedures not required by federal law. In my view, the Briggs instruction is constitutional. The majority's contrary holding ignores the people's will as expressed in their own Constitution.
People v. Easley (1983) began another series of cases involving Briggs instructions. Again the Bird Court exercised great ingenuity in rewriting the death penalty statute to comport with its own notions of "fairness" and "rationality." The Briggs Initiative required that the penalty phase jury be instructed as follows: "You must not be influenced by pity for a defendant or by prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." The Court disallowed the use of this instruction, reasoning that it precluded the jury from giving due consideration to any evidence of mitigating circumstances presented by defendant. The majority opinion, written by Kaus and joined by Bird, Broussard, Reynoso, and Grodin, mistakenly relied upon United States Supreme Court decisions which held that any evidence of mitigating circumstances must be taken into consideration by juries in death sentence deliberations. In Lockett v. Ohio (1978), the Supreme Court remarked that the sentencer may not be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." In applying this rationale to the Briggs instructions, the California Court erred in considering "pity" or "sympathy" to be mitigating evidence, when in fact these terms refer not to evidence but to the emotional disposition of the jurors. This was precisely Justice Mosk's point in his dissent in People v. Lanphear (1984) where he noted that "Sympathy . . . is not a characteristic of the defendant; it is an emotion of the jurors." Thus pity cannot be considered as evidence of mitigation that the U.S. Supreme Court said must be considered as an aspect of defendant's character. It is clear that the Bird Court's reliance on federal authority for its construction of the Briggs Initiative is wholly misplaced. In effect the Bird Court has forced trial courts to give far greater weight to mitigating factors than the law intended by including pity or sympathy as among those mitigating factors that the juror must take into consideration. In sum, the Court's criticism of the Briggs instruction in Easley amounts to this: "The instruction may very well have eliminated any chance Easley had to escape the death penalty."
In People v. Walker (1985), another New Year's Eve Massacre case, the Court seemed to go beyond the Easley rationale in vacating defendant's death sentence. Defendant had been convicted of the execution-style murder of a fifteen-year-old boy who pleaded with defendant to spare his life. His piteous plea fell upon unsympathetic ears. At trial two witnesses had testified "that defendant had been helpful to them in past years." Although the trial judge had instructed the jury that "pity and sympathy for the defendant would be proper considerations if you should find them to be warranted in the circumstances," the Bird Court found these instructions inadequate. The instructions were defective because "it is not sufficient to tell the jury that it may consider 'sympathy' for the defendant if it is then told to determine the penalty by weighing specific aggravating and mitigating factors, none of which appear to include the facts on which defendant bases his plea for sympathy." In short, the judge is obliged not only to inform the jurors which factors deserve their pity and sympathy, but also that these factors must be considered as a part of the mitigating circumstances. In effect, the Court is demanding that the trial judge argue the defendant's case under the guise of merely providing jury instructions!
Still another weapon in the Bird Court's ideological arsenal is its use of the issue of effective counsel to overturn death sentences. Up to this point the Bird Court has appeared merely to be dilatory and irrational. This issue reveals it to be schizophrenic as well. In a surprising decision written by the otherwise competent Justice Richardson in People v. Mozingo(1983), a unanimous Court held that the defendant had been denied the effective assistance of counsel because his attorney acceded to defendant's demands that he present an "alibi defense." The attorney's advice, based on his professional assessment of the case, was to present an insanity defense. In a trial that rehearsed some of the most horrid and gruesome facts ever assembled in a court of law, defendant was found guilty of special-circumstances felony murder and sentenced to death. On appeal, the California Supreme Court overturned the death sentence, remarking that "counsel must attempt to investigate the issue despite his client's objections, and thereafter inform and advise his client accordingly, leaving the ultimate decision to him." Defendant's attorney chose not to investigate the possibility of a mental defense because it was utterly incompatible with the presentation of a case where defendant denied complicity in the murder through the use of an alibi. Had counsel actually used this defense, real grounds for incompetence would have been only too manifest.
People v. Frierson (1985) was almost the exact reverse of the situation in Mozingo. Frierson asked counsel to present a diminished-capacity defense. For sound tactical reasons, defense counsel did not accede to his request. Counsel calculated that because overwhelming evidence existed that the defendant had killed his victim in order to escape identification, this fact would make it impossible to allege diminished capacity. Such calculation and planning, defendant's counsel reasoned, could hardly be represented as the actions of someone of "diminished capacity." The Court ruled that defense counsel's decision was evidence of ineffective assistance of counsel and overturned the death verdict. Since the Court held that there is a personal right on the part of the defendant to participate in his own defense, he may seek actions contrary to counsel's advice. "In such a situation," the Court remarked, "the attorney's obligation is simply to provide the best representation that he can under the circumstances" (precisely what Mozingo's attorney had done). If a defense counsel, mindful of the defendant's right to participate in his own defense, accedes to defendant's suggestions for an effective defense against his own judgment and loses in a penalty phase trial, under Mozingo he will be judged incompetent; if, however, he refuses, and loses in a penalty phase trial, he may be judged incompetent under Frierson.These two cases, whatever else they may stand for, make it abundantly clear that what is best under the circumstances is left for the Supreme Court to decide after the fact, not the attorney at the time of the trial. This line of reasoning, of course, allows the Court untrammeled discretion in determining when the "denial" of the right to effective counsel must be deemed to have vitiated an otherwise proper sentence of death. As Professor Phillip Johnson has recently remarked, "Reversing verdicts whenever defense counsel fails to present some farfetched defense creates the paradox that the most effective way to defend a capital case may be to defend it ineffectively." Under these circumstances, of course, the rule of law has become a mere charade.
But the mind grows weary. Common sense retreats before the onslaught of sophistry. We have touched upon issues that we consider to be representative of the Bird Court's machinations against the Constitution and the laws of the state of California. We have by no means concentrated on the most egregious abuses of judicial independence on the part of Rose Bird and her activist colleagues, Grodin, Reynoso, Mosk, and Broussard. We could have discussed to our advantage the issue of jury selection in death-penalty cases. For example, Bird would not allow the systematic exclusion from death-penalty juries of those who would automatically vote against the death penalty in every case. Her reasoning is that since opposition to the death penalty represents a significant opinion in the community, the exclusion from juries of those who categorically oppose the death penalty violates the fair cross-section requirements of jury selection. This is her very subtle way of ensuring that no jury will ever return a sentence of death. We could also have mentioned how the Bird Court has attempted to rewrite the Victim's Bill of Rights by engaging in tergiversations and equivocations about the meaning of ordinary words ("shall" must mean "may"; "and" must mean "or").
Also, the Court's egregious abuse of the technicalities and intricacies of search-and-seizure rules to discredit evidence of crimes could be recounted in a very revealing manner. This would inevitably involve discussion of People v. Frank (1985), a case involving the brutal torture and murder of a two-year-old girl. The Court's own description of the circumstances of the crime is graphic:
An autopsy revealed that Amy had sustained a number of injuries prior to her death. As a result of pressure from a pliers-like instrument, her nipples had been pinched and partially pulled away from her body. She had suffered three blows to her head, knife-like scratches on her chest and abdomen, and ligature marks on her wrist and ankles. The entrance to her vagina was torn and the hymen broken, possibly by insertion of a penis; her anus exhibited evidence of trauma indicating that a foreign object had been inserted there as well. Sperm were discovered in her vaginal area. Her blood had a .03 percent blood alcohol level, which could result if a child her size had ingested two cans of beer shortly before death. The actual cause of death was strangulation.
Defendant was known to be a "recidivist child molester"-having committed other brutal crimes of almost the same nature-and had been released from Atascadero State Hospital less than two months before the commission of this crime. During his hospital incarceration, Frank had kept personal diaries and notebooks recounting in morbid detail what the Court delicately described as "numerous random thoughts of an intimate nature, relating mainly to his emotional and sexual life." The entries described "his propensity to molest children [and] general remarks about his modus operandi, and specific references tending to link" defendant with other similar crimes. Although these notebooks were used by the prosecution in both the guilt phase and the penalty phase of the trial, they were not crucial to the prosecution's case. There was overwhelming evidence apart from the notebooks establishing beyond doubt that Frank had been the perpetrator of the crime.
On the issue of the unreasonable search and seizure, the Court, in an opinion written by Mosk, held that the warrant which authorized the search was overbroad in its description of the items to be searched and seized. The warrant had simply used standard "boilerplate" language, which nevertheless did specifically authorize a search for personal diary notations, scrapbooks, newspaper clippings, photographs, and "writings which could relate to the death of Amy." Mosk indignantly complained that "there is not the slightest showing that the criminalists ever referred to the warrant for guidance on what they could seize. . . . It is apparent that the notebooks-like all the documents taken in this search-were seized not because they were listed in the warrant, but simply because after looking at them the officer suspected they might be incriminating." The real defect of this search and seizure was that "nowhere . . . was there alleged one single fact that gave probable cause to believe that any of the boilerplate allegations of the warrant were true." And it is precisely this imprecision with respect to the probable cause that "unreasonably" interfered with Frank's "right to privacy." Because of these arbitrary actions-which were taken with the complicity of the judge who issued the warrant-the death sentence was overturned. Justice Bird believed that this outrageous behavior also warranted the overturning of the conviction as well as the death sentence. But again, the mind grows weary; the Bird Court's assault upon the Constitution and the rule of law seems to know no end.
In November the people must make a frank decision about their judiciary. Chief Justice Bird has recently stated her defiant resolve: "It is easy to be popular; it is difficult to be just." One suspects, however, that Rose Bird and her most enthusiastic supporters on the Court, Reynoso, Grodin, and Mosk, have not incurred the antipathy of the people of California because they have been just, but because they have manifested their injustice in a way that most threatens a self-governing polity. A self-governing polity requires an independent judiciary, not "government by judiciary."