Thirty years ago this month, the California Supreme Court heard arguments in a case that raised what was an unsettled question: Could a man be sentenced to death for a double murder in which the victims were his pregnant wife and their unborn child?
The argument was tense, though not merely because the man’s life was at stake. A campaign was underway to unseat Chief Justice Rose Bird and two other justices appointed by young Jerry Brown. Los Angeles Times pollsters had found that a majority of voters were so adamant in their support for capital punishment that they didn’t much care if an innocent person might be executed on occasion.
One day last week, California Supreme Court justices convened for oral argument at the Stanley Mosk Building in Sacramento, and heard the matter of Anthony Letrice Townsel, who is on death row for murdering a man, a pregnant woman and her fetus in Madera in 1989.
Townsel’s mental capacity, or lack of it, was the immediate issue, not the justices’ careers. However, the backdrop for this and all capital cases remains the same: Can California implement the death penalty? Should it? Voters could get their say again this year.
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Based on the California Department of Corrections and Rehabilitation’s count, 746 people are on death row. The youngest is 23. The oldest is 85, David Carpenter, the Trailside Killer, who was convicted of killing five women and probably murdered several others in the ’70s and ’80s.
Four men have been on death row for crimes committed in 1977, the year that Justice Leondra Kruger turned 1, Justice Mariano-Florentino Cuéllar turned 5, and Justice Goodwin Liu turned 7.
Since the death penalty was reinstated in 1977, over young Gov. Jerry Brown’s veto, 102 condemned inmates have died of natural causes, suicide or drug overdoses. Thirteen have been executed at San Quentin, though no one has been put to death there in 10 years. Alfredo Prieto, condemned for murders in California and Virginia, did receive the lethal needle last year in Virginia.
The California Supreme Court hasn’t been the holdup since voters dumped young Brown’s three appointees in the brutal 1986 campaign that focused on Bird’s votes to overturn death sentences. Three decades later, Brown, former seminarian, remains a moral opponent of capital punishment. But the justices he has appointed in his second turn as governor – Kruger, Cuéllar and Liu – regularly vote to uphold death penalty cases. Little else has changed.
Liu has written several majority opinions affirming death judgments, including one this month involving a Stockton man, Louis Peoples, who killed four people with a gun he stole from a van belonging to an Alameda County sheriff’s deputy.
“This court isn’t about to declare it unconstitutional,” said Santa Clara University Law School Professor Gerald F. Uelman, who has been paying attention to the California Supreme Court since the Bird court days. “I don’t think (Brown) had the death penalty in his sights at all in making these appointments.”
Any changes are on the margins, for now at least. On Jan. 5, 2015, the day Brown swore in Kruger and Cuéllar, the court upheld the death sentence of Gary Grimes for the 1995 murder in Shasta County of Betty Bone, a 98-year-old woman who had been bludgeoned, choked and stabbed to death in a home invasion robbery.
All seven justices agreed that Grimes was properly convicted of murder. But Liu and Justice Kathryn Mickle Werdegar, a Wilson appointee, wrote that the trial judge improperly excluded testimony that might have persuaded jurors to spare Grimes’ life.
In March 2015, two months after joining the court, Kruger and Cuéllar voted with Liu and Werdegar to rehear the case. The matter is pending. But however the court rules, the issue likely would not apply broadly to death penalty cases.
In 2014, U.S. District Judge Cormac J. Carney of Orange County struck down the death penalty in California, not because he necessarily opposed capital punishment, but rather because he found the delays so long that it amounted to cruel and unusual punishment.
Before an appellate court reversed Carney’s decision, the California Supreme Court considered that same issue in a case involving a Hayward man, Ropati Seumanu, who robbed and shot to death Nolan Pamintuan, on the night in 1996 before Pamintuan was to be married.
Writing for a unanimous court last year, Werdegar did not preclude considering the challenge at some point in the future. But she cited good reasons for delays: The high court must locate qualified appellate attorneys, provide time for those attorneys to prepare detailed written argument, allow the state time to respond, and then evaluate the arguments.
All that takes years, decades. And there are the federal appeals. And the death row population grows. And once more voters could be called up to render their verdict on the failed system.
Signature gatherers are circulating petitions for two initiatives, one to abolish the death penalty and one to speed up executions. Backers of each have raised roughly $1 million.
“Definitely,” consultant Bill Zimmerman said, when I asked whether the abolition initiative would quality.
“I am feeling confident,” said Chris Orrock, consultant for the initiative to expedite the death penalty. “We have the resources, and we have the desire to get it on the ballot.”
Say both measures pass. The state constitution says the initiative that receives the most votes would take precedence. But that legal concept has never been applied to competing death penalty measures. The question would be litigated, the death penalty would remain in limbo. And Michael Allen Hamilton, the guy who killed his pregnant wife in Tulare County in 1981, will turn 65 this year, on death row.