Bye bye birdie

National Review, Sept 12, 1986 by Robert H. Knight

BYE BYE BIRDIE

A LOS ANGELES radio broadcaster probably put it best when he reported on Democratic Mayor Tom Bradley's long-awaited decision on whether to support California Chief Justice Rose Elizabeth Bird in her reconfirmation bid: "Tom Bradley has come down firmly on the side of neutrality.' The mayor, who is running for governor against popular Republican incumbent George Deukmejian, had been badgered for months on the question. Forging his own path in a swamp explored by few other ranking Democrats, Bradley transformed the art of waffling into a profile in courage, albeit a low profile.

Bradley has good reason to keep his head down. Recent polls by the Los Angeles Times and by Mervin Field show Justice Bird steadily ceding ground and eventually losing by twenty points or more. The Field poll shows her losing even among Democrats.

The consensus among political observers is that Justice Bird will hurt her party in the November elections; the only question is how much. This leaves Democrats with a painful dilemma. Bradley's ringing non-position, while not ranking with his flip-flops on gun control and offshore drilling, was probably the best he could do to minimize the damage. If Bradley had come out against her he would have been accused of abandoning his principles and turning his back on an ally.

WHY ALL this fuss over a judicial campaign, usually one of the more boring exercises endured by the electorate?

For starters, both parties rightly see the composition of the seven-member State Supreme Court as pivotal to California's political evolution. Depending on which side of the aisle you are on, Justice Bird and her allies on the bench are either the last hope of humane, responsive government or the tool of liberal ideologues bent on institutionalizing egalitarian values.

But it's not her court's social engineering that has got the public's dander up. It is the death penalty--or, more precisely, the refusal to apply it.

The State Supreme Court has upheld only three death sentences since California reinstituted capital punishment in 1977. Those cases are now winding their way through the federal courts, and, at last count, California's Death Row, which has not had an execution since 1967, hosted a population of more than 160. In none of the nearly sixty murder cases appealed to the Bird Court has the Chief Justice voted to affirm a death sentence. The public has begun to suspect that she has a soft spot for convicted murderers.

According to the latest polls, support for capital punishment has reached 83 per cent among Californians, the highest ever. Even many who had considered opposition to the death penalty an integral part of the civil-rights movement have swallowed hard and reassessed. Cases such as that of Theodore Frank, convicted of murdering a two-year-old girl in 1978, help explain why.

Frank's crime was particularly gruesome: After kidnapping the toddler from the backyard of her babysitter's home, Frank proceeded to bind, rape, and torture her with a pair of pliers before strangling her and dumping her body in a canyon. A jury found Frank guilty of first-degree murder and recommended the death penalty after reviewing evidence seized during a court-sanctioned search of his home, including a pair of pliers that matched the wounds on the girl, and his diaries, full of passages like this: "Children, made-to-order outlet for my anger and sex. Innocent, trusting, scared, vulnerable, and submissive. . . . I want to give pain to these little children. I want to molest them. I want to be sadistic. I want to harm them.'

The Bird Court, concluding that the warrant used by the police had been too broad, threw out the death sentence. Justice Bird herself went further, favoring reversal of not only the death penalty but the conviction. She said that Frank was denied a fair trial because potential jurors who were philosophically opposed to capital punishment were excluded. In other words, in a system in which unanimity is required for the death penalty to be applied, Justice Bird wanted to require the seating of jurors who had made it clear that they would not uphold the law under any circumstances.

The outcome of Frank's appeal was not a surprise. For the past several years, the court has shown itself willing to employ the most farfetched legal rationalizations to void death sentences. Its latest contribution to jurisprudence has been to rewrite the legal definition of "intent' in such a way as to make it almost impossible to sentence anyone to death. To the rest of the legal world, "intent' is determined by asking: Would the reasonable man expect a given action, such as shooting someone in the head, to produce a particular result, such as death? But for Rose Bird, intent means a state of mind that the prosecution can never prove existed. Take three recent death-penalty cases decided by the court:

A student from a Christian college who stopped to ask directions on a street corner was told to hand over all his money and was shot to death after he refused and tried to flee; a fast-food-store manager was told to kneel, than shot at close range through the head by a robber; a couple who owned a grocery store were shot to death by a robber as their eight-year-old son watched. In all three instances, the court ruled that although the prosecution proved the defendants had killed the victims in the course of robberies, it hadn't proved that they had actually intended to kill. The death sentences were thrown out and new trials ordered. Case after case is now being tossed out on the intent rule, and dozens more that were considered "safe' are slated for review.