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Chief Justice Bird has been appropriately circumspect, cautious, and thorough in her analysis of the 58 death penalty cases she has voted to reverse. In all 58 cases she was joined by at least one other justice in voting against the penalty of death: in no case was she the lone dissenter. A majority of the court's justices ruled in favor of the death penalty in only three of the 58 death penalty cases reviewed by the court since Rose Bird became Chief Justice. Of the 55 death penalty reversals, 14 (25%) of the decisions were unanimous, while 16 (29%) were decided by votes of 5-1 and 6-1.1 Former California Supreme Court Chief Justice Donald Wright, who was appointed to the court by Ronald Reagan, voted to reverse all 172 death penalty cases he ruled on between 1970 and 1977.2 Since the moratorium on executions was lifted by the U.S. Supreme Court in 1976, seven of the ten largest states in the country had not executed anyone by the end of 1985.3
National statistics reflect the necessarily deliberate pace of capital punishment in America; because lives hang in the balance, no detail or technicality is insignificant.4 A study released in October 1985 documented 25 cases in which people, between 1900 to the present, were executed in error.5 There is no rapid way to process death penalty decisions; for each death penalty case the court must ensure that every one of the complex federal and state provisions on capital punishment is complied with, and each justice is responsible for reviewing an average of 5,000 pages of transcript per case.6 Far from intentionally delaying death penalty cases, the Bird court handed down 23 death penalty decisions in 1985 -- twice as many cases as in any previous year of Chief Justice Bird's tenure.7 In 1982 Chief Justice Bird created an additional law clerk position for each justice, exclusively to help review death penalty appeals.8
Chief Justice Bird, by invoking a series of minute legal technicalities, has systematically attempted to prevent the implementation of California's death penalty,9 voting to reverse every death penalty case that has come before her since her term began in 1977.10 At times she has gone to great lengths to invent new reasons for voting to reverse, such as invalidating a death sentence because the jury did not include aliens as well as citizens.11 Chief Justice Bird is the only California Supreme Court jurist since 1977, the year before California's current death penalty statute went into effect, who has not voted to affirm a single death penalty case12 and has thereby failed to uphold the legal and constitutional responsibilities of her office. The Bird court has intentionally dragged its feet in disposing of the death penalty cases before it, violating a state law that requires the court to rule on each capital punishment case within 150 days.13 75% of Californians polled recently favored the death penalty.14
Chief Justice Bird has never been the lone dissenter in voting to reverse a death penalty case. The justices who have been lone dissenters in the 55 death penalty cases reversed by the California Supreme Court since 1979 are:
In all of the above cases, the lone dissenter favored the affirmance of the death penalty. (Click here to see the Supreme Court justices' voting records on the death penalty.)
In the pro argument's reference to seven of the ten largest states not executing anyone since the U.S. Supreme Court lifted the moratorium on executions, two of the ten largest states -- Michigan and New York -- do not have death penalty statutes.15 (Click here to see Executions in the Ten Most Populous States: 1975 to 1985.)
Six people were executed in the United States (four voluntarily, two involuntarily) between 1967 and 1982, despite a death row population at the end of 1982 numbering 1,063.16 Five people were executed in 1983, 21 people in 1984, and 18 people in 1985 (four of which were voluntary). Out of this total of 50 executions, 45 were carried out in southern states.17
In the eight states that revised their death penalty laws in 1978, the year California's current death penalty law went into effect, only one person had been executed by the end of 1985.18 25 of the 37 states with death penalty statutes have not executed anyone since 1976.19
State supreme courts nationwide reverse an estimated 43% of the death penalty cases they decide, while federal appeals courts, which primarily review only those death penalty cases previously affirmed at the state supreme court level, reverse or vacate an estimated 60%. Death penalty cases reviewed by federal appeals courts originate in different states, with varying death penalty statutes.20
Chief Justice Bird never voted to reverse a death sentence based on the ruling that a jury did not include aliens.21
Penal Code section 190.6, which requires that the court decide death penalty appeals within 150 days after the completion of the appellate record, also includes the provision that, if the case is not decided within that time period, the Chief Justice must "state on the record the extraordinary and compelling circumstances causing the delay." We have found no evidence to support the claim that Chief Justice Bird has not complied with these terms.22
Following the certification of the original trial record in a death penalty case, defense counsel has 30 days to file an opening brief with the California Supreme Court. Because the records in death penalty cases are lengthy and raise numerous appellate issues, the defense is frequently granted 30-day extensions to complete the brief. The brief is typically more than 150 pages. The Attorney General then must respond with his brief, and a similar time frame can be applied. Finally, the defense is given 20 days, plus any necessary extensions, to write a reply to the Attorney General's brief, and 30-day extensions can be granted for the reply to be completed. After the justices have familiarized themselves with the briefs, the case is then calendared for oral argument in the California Supreme Court. After oral argument, a justice must write and circulate and opinion to all the other justices to try to gain a consensus on the decision. Death penalty cases are assigned to the justices on a strictly rotational basis after the death judgment is filed in the California Supreme Court.23
In 1984, Justice Malcolm Lucas, who has been a strong proponent of the death penalty, said "Several steps have been taken by the court and the Chief Justice in the past two years to enable the court to try to deal with the death penalty cases more effectively."24
Legal scholars,25 and one of Governor George Deukmejian's top aides who helped draft the 1977 law that contained the 150-day provision, agree that 150 days is an unrealistically short time period in which to decide death penalty cases.26
All other statistics and poll results cited above have been verified.
1 West's California Reporter -- Cases Argued and Determined in the Supreme Court, (West Publishing: St. Paul, MN), March 1977 to September 1986.
2 Uelmen, Gerald, "Judging the Supreme Court Judges," Los Angeles Lawyer, May 1986, p. 19.
3 U.S. Dept. of Commerce, Bureau of the Census, "Estimates of the Populations of the U.S., 1970 to 1983," Current Population Reports, Series. p. 25 (1957), October 1984, p. 11, and NAACP Legal Defense and Educational Fund Report, December 20, 1985, reprinted in Lifelines, newsletter of the National Coalition Against the Death Penalty, #24, July-August 1985, p. 8, and U.S. Department of Justice, Capital Punishment Reports, 1982, "Executions: 1930 to 1982," p. 15.
4 Zimring, Franklin, "Justice Teeters on the Fine Points," editorial in Los Angeles Times, January 28, 1986, II: p. 5.
5 Badau, Hugo A., and Michael L. Radelet, "Miscarriages of Justice in Potentially Capital Cases," Department of Philosophy, Tufts University, October 15, 1985, p. 27, Table II.
6 Los Angeles Times, "Agony Over Resuming Executions," by Dan Morain, August 18, 1985, I: p. 1.
7 Uelmen, Gerald, "California Death Penalty Laws and the California Supreme Court: A Ten Year Perspective," op. cit., p. 14.
8 "Let the Record Reflect," op. cit., p. 63.
9 Johnson, Phillip E., "Fixation on 'Detail' Immobilizes Justice," editorial in the Los Angeles Times, January 28, 1986, II: p. 5.
10 West's California Reporter -- Cases Argued and Determined in the Supreme Court, (West Publishing: St. Paul, MN), March 1977 to September 1986.
11 Will, George F., "Voting on Bird: Good Use For A Bad Idea," editorial in the Los Angeles Times, February 2, 1986, V: p. 5.
12 West's California Reporter -- Cases Argued and Determined in the Supreme Court, (West Publishing: St. Paul, MN), March 1977 to September 1986.
13 Reference to Penal Code Section 190.6. "Prosecutors' White Paper on the Supreme Court Confirmation Election," California District Attorneys Association, Sacramento, CA, p. 7.
14 Los Angeles Times, "75% Support Death Penalty in California," by John Balzar, August 19, 1985, I: p. 1.
15 NAACP Legal Defense and Educational Fund Report, supra.
16 U.S. Department of Justice, Capital Punishment -- 1983, supra.
17 NAACP Legal Defense and Educational Fund Report, "Death Row, USA," March 1, 1986, p. 4.
18 U.S. Department of Justice, Capital Punishment -- 1978, pp. 12-15, and NAACP Legal Defense and Educational Fund Report, op. cit.
19 Los Angeles Times, "Agony Over Resuming Executions," supra.
21 West's California Reporter, op. cit., People v. Coleman 1985, 38 C3d 69, and People v. Rubio 1979 24 C3d 93.
22 California Appellate Project, San Francisco, CA.
23 California Appellate Project.
24 Los Angeles Daily Journal, "State High Court is Again Assailed on Death Penalty," by Bill Girdner and Philip Carrizosa, December 20, 1984, p. 1.
25 San Francisco Chronicle, "California's Quandary Over the Death Penalty," by William Carlsen, May 30, 1983, I: p. 1.
26 Los Angeles Times, "Senate Looks at Death Penalty Delays," by Leo Wolinsky, March 20, 1983, I: p. 3.