In January 1978 twenty-one-year-old Lavell Frierson forced two men into a car outside a seedy motel in Inglewood, California, robbed them of their wallets and wristwatches, and shot both in the back of the head execution style. One man survived and identified Frierson, who was tried, convicted of first-degree murder, and sentenced to death. The case then went on automatic appeal to the state supreme court.
Twenty months after the crime, in September 1979, justices unanimously overturned Frierson’s conviction and sentence. His court-appointed lawyer had failed to put on any kind of defense, they agreed. Frierson was also borderline mentally retarded, but this information had not been provided to the jury. He would have to be retried; meanwhile, he would remain in prison.1
Frierson’s case involved a larger issue, however. The justices had to determine what laws governed his retrial and thus needed to grapple with California’s somewhat convoluted death penalty laws. Since 1972, when both the California and U.S. Supreme Courts declared capital punishment to be “cruel and unusual” and thus unconstitutional, laws had been in flux. Twice in the 1970s, state lawmakers wrote new legislation that, they hoped, would conform to federal guidelines.
In 1976 the state supreme court invalidated the first rewritten law; it failed to give jurors sufficient sentencing discretion—a requirement of the U.S. high court. So the legislature went back at it and, in 1977, enacted a new measure. Authored by state senator George Deukmejian, it listed a series of “special circumstances” that qualified defendants for the “ultimate punishment,” and it gave jurors discretion in sentencing. Jerry Brown vetoed the legislation, but lawmakers garnered the two-thirds majority required to override the veto. “I don’t believe in the death penalty,” Brown said, “but the Legislature has spoken and now it’s up to the courts.”2
For some conservatives, however, the new legislation did not go far enough. They included John V. Briggs, a firebrand Republican state senator from Orange County, carved from the same mold as his colleague H. L. Richardson. Both men had tied their careers to rising public anger toward criminals and strong support for tougher punishments, sentiments reflected in polls revealing a significant increase in pro–death penalty support in the years following its abolition. Briggs planned to run for governor in 1978. To distinguish himself from the field of moderate Republicans, he crafted a measure to appear on the November 1978 ballot. Proposition 7, the “Briggs Initiative,” would be “the toughest death penalty law in the country,” he said.3
Deukmejian’s legislation had enumerated eleven “special circumstances.” They included murder of a policeman, murder for hire, a second or subsequent murder, and murder committed during the commission of a robbery, kidnapping, rape, burglary, lewd acts on a child, or torture. The “intent” to kill had to be present. The Briggs Initiative added more special circumstances: murder to aid an escape, murder by poisoning, murder as a hate crime, or an “especially heinous” killing. It also toughened penalties for second-degree murder and barred parole for all murderers before they served at least fifteen years.4
Accomplices could be charged with murder even if they did not commit the actual crime, and in “direct repudiation” of an earlier California Supreme Court ruling—People v. Morse, from 1964—juries could be told that anyone given a life sentence without the possibility of parole might eventually be released from prison. Judges also were required to inform juries that they had to sentence defendants to death if “aggravating” circumstances outweighed “mitigating” circumstances.5
Proposition 7 easily garnered enough signatures to qualify for the ballot and passed by a whopping margin—72 percent to 28 percent, reinforcing the notion that California voters wanted murderers punished severely and sooner rather than later. The measure’s passage did not help Briggs professionally, however; he dropped out of the race before the June primary. Evelle Younger, the Republican nominee, lost in November to Jerry Brown. Voters might want criminals punished, but they were not yet ready to replace Brown. And voters solidly rejected another Briggs ballot measure, Proposition 6, which would have mandated the firing of gay teachers.6
The passage of Briggs’s death penalty measure so soon after Deukmejian’s placed the state supreme court in a quandary. Did the initiative supersede Deukmejian’s legislation? Deukmejian believed that Proposition 7 simply expanded its scope. Most importantly, did either law pass constitutional muster? Justices had to decide these issues in order to “provide guidance” to the hundreds of trial courts across the state facing an influx of capital cases. Frierson had committed his crime before the Briggs Initiative appeared on the ballot, however, so the court had to focus solely on Deukmejian’s legislation.7
The decision was fraught with peril for all of the justices, who were emerging from nearly a year of turmoil and intense public scrutiny as a result of the Commission on Judicial Performance hearings. But the stakes were highest for Rose Bird. H. L. Richardson and others already had managed to convince a significant number of Californians that she was “soft on crime,” “antivictim,” and overly sympathetic to murderers. And that was before she ever participated in a death penalty decision. Frierson placed her opponents on high alert, but since the decision to overturn Frierson’s conviction had been unanimous, criticism was muted on that score. As for the larger issue: the court decided, in a decision written by Frank Richardson and signed by four other justices, that Deukmejian’s legislation was constitutional.
The wording hinted at the emotional stress involved in deciding capital cases in an era when voters and politicians closely watched court opinions. Richardson’s ruling did not necessarily represent a ringing endorsement. “Since 1972, the sovereign people of this state twice directly and through their elected representatives . . . have mounted a continuous, strong and joint effort to restore the death penalty,” Richardson wrote. “If the people and the Legislature are correct in their assumption that the penalty acts as a deterrent, then it is possible that some persons contemplating the commission of capital crimes may be diverted by a clear and unqualified ruling upholding the constitutionality.”
Stanley Mosk concurred with Richardson’s opinion but only “with the utmost reluctance.” Laws might pass constitutional muster, but that did not mean the death penalty was moral or just. “The day will come when all mankind will deem killing to be immoral, whether committed by one individual or many individuals organized into a state,” he wrote. And he criticized the U.S. Supreme Court for failing to provide states with adequate guidelines.8
Both Bird and Mathew Tobriner dissented from the majority ruling. Others might bow to public pressure, Bird implied, but she would not. The majority decision represented “a rush to judgment,” she wrote. “No matter how clamorous the movement of the moment, the right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, ‘may not be submitted to a vote.’”9
For someone who had faced unrelenting public scrutiny for the better part of three years, Bird’s dissent seems excessively confrontational. Supreme court justices seldom talked directly to the public. Their judicial rulings spoke for them, and justices virtually always refused to explain their reasoning or how they achieved the results. In cases involving minor or “unimportant” issues, at least to a wider audience, few people paid attention. But criminal cases were different—particularly death penalty cases. When the court issued its ruling on Frierson, no executions had occurred in California for more than a decade. Bird had to know she was walking into a minefield. Every future death penalty opinion of hers would go under a microscope.10
The same could be said for her colleagues, but Bird’s gender placed her in a different category. Ordinary people seemed to feel they could walk up to her in public and vent about the court and its decisions. And they often used her first name when they did so, rather than her title. It is hard to imagine Stanley Mosk or Mathew Tobriner facing down angry shoppers at the supermarket who called them “Stan” or “Matt,” but it happened to Rose Bird with some frequency. Once, an irate woman accosted her as she was paying for groceries. The woman had a friend with an abusive husband, she told Bird. When the friend called police, the officer said he could do nothing, since the “Bird Court” sympathized with criminals.
Such confrontations rattled Bird, though she continued to write assertive opinions in high-profile cases. But they did encourage her to change the way she looked; perhaps fewer people would recognize her if she cut her hair and wore some makeup, she reasoned. “My hairstyle was so distinctive, it sometimes made it difficult when I went out,” she told a reporter. So she had it cut to shoulder length and wore it loose and curly. She regretted having to make this concession, but she added, “I have to take [the heat]. Once you accept a position, you can’t walk away from it because it is unpleasant or people say mean things.”11
Occasionally, the “mean things” took on a more ominous cast, and she received death threats. She did not worry about herself, Bird insisted, but about her mother, who lived alone in Palo Alto when Bird worked in San Francisco. At some point, she removed the street address from the front of the house and scratched it off the curb as well. And she hung a sign—“Beware of Dog”—on the gate.12
The Frierson decision opened the floodgates with regard to capital punishment. The justices still had to rule on the constitutionality of the Briggs Initiative, while they confronted a mounting number of capital appeals. By the end of 1981, trial courts throughout the state had issued ninety-one death sentences. For each, transcripts had to be readied, capital-qualified appellate attorneys hired, appeals filed, and hearings set and reset to fit the schedules of attorneys and judges. As a result, the high court had heard only eleven capital cases, overturning nine death sentences and upholding two: those of Earl Lloyd Jackson and Robert Alton Harris. Bird dissented in both.
Jackson was nineteen when he robbed and murdered two elderly Long Beach widows in late summer 1977. He also raped one of his victims with a wine bottle. His appellate petition included a long list of issues, mostly hinging on trial counsel’s inadequate defense and inadmissible evidence. Richardson wrote the 4–3 opinion, released in October 1980. It stated: “Mindful as we are of the extreme gravity for which the defendant stands convicted and the ultimate punishment which has been imposed . . . we conclude that no miscarriage of justice has occurred.” Mosk, Tobriner, and Bird dissented. All three used their opinions to revisit Deukmejian’s 1977 legislation, which they found lacking. Mosk criticized the trial counsel for failing to present any mitigating evidence during the penalty phase.
Bird’s dissent would be used over the following years as evidence of her lack of sympathy for victims and obsession with making sure no one—not even the worst of the worst—ended up in the gas chamber. “Today, this court sends to his death an impoverished, illiterate and possibly retarded 19-year-old black youth,” she wrote. “I respectfully submit that it is unconscionable to affirm a conviction.” Throwing down the gauntlet to death penalty supporters, she added: “If the death penalty is to be imposed, it must be done under a system that ensures fair and consistent results at the trial level.” The 1977 legislation offered “no meaningful standards.”13
Robert Alton Harris was twenty-five, just out of prison, and looking for a car to use in a robbery in summer 1978 when he spotted two teenagers eating hamburgers in a San Diego supermarket parking lot. He commandeered their car, drove to a deserted area, ordered the boys to run, and then shot both in the back. His appellate attorney argued that pretrial publicity—the father of one teenage victim was the police officer who arrested Harris—should have gotten the trial moved out of San Diego County. William Clark wrote the 4–2 opinion upholding the death sentence. “None of the many contentions raised by the defendant has merit,” he wrote. Less than a month later Clark left California for Washington DC, where he became President Reagan’s deputy secretary of state.
In her dissent, Bird made no mention of Harris’s impoverished or abusive youth but focused intently on the media’s sensational saturation coverage of the case, which lasted for weeks. She also acknowledged the “terrible crimes,” which were “exceptionally cold-blooded and senseless.” Nonetheless, Harris had been deprived of a fair trial. Media accounts had depicted him as “sewage polluting society.” The right to “‘a fair trial in a fair tribunal’ is a basic component of due process,” Bird wrote.14
With every passing month, death penalty proponents grew ever more impatient and angry. The court needed to speed up the process and, more importantly, uphold more death sentences. Justices might cite numerous problems having to do with “due process” and other constitutional guarantees, but those were just excuses. “Rose Bird’s Court” was purposely slowing down and subverting the legal process. Justices understood the implied threats that underlay the critics’ comments. Four justices would be on the November 1982 ballot for voter approval, three of them Brown appointees.15
Bird was not on the ballot for reconfirmation that year, but she remained solidly in the forefront of public consciousness. Several individuals had begun recall efforts, with the aim of getting enough signatures to force her to face voters in a special election. Four years after his initial effort to defeat Bird, H. L. Richardson was still actively pursuing her. In early 1982 he announced a recall campaign. “You give me $400,000 and I’ll deliver Rose Bird on a platter,” he told an audience of conservatives. Three months later, having received only $20,000, he abandoned the effort. “The people of California deserve Rose Bird,” Richardson said disgustedly.16
Anthony Rackauckas, a deputy district attorney in Orange County, also sought to recall Bird. He became a vociferous critic after prosecuting Maurice Thompson, convicted and condemned for murder during the commission of a robbery. The court, in a decision written by Bird, overturned Thompson’s death sentence. Bird claimed that the defendant had not intended to kill, thus no special circumstance existed. Bird “misused her position to advance her liberal beliefs,” Rackauckas declared. He was confident he could raise $500,000, he added; direct mail targeting had gotten so sophisticated by 1982 that “you can even get a list of voters who own pickup trucks.” But his effort, like Richardson’s, failed.17
Marvin Feldman, a private citizen who disliked “activist” judges, also undertook a recall effort. He borrowed on his La Canada home to raise money to recall several jurists, including Bird, but he abandoned the effort after bankers threatened to foreclose. To recoup funds, he wrote and then tried to sell lyrics to a ballad he called “This Is America.”18
The court and legal experts recognized what was at stake in the mounting opposition. Tobriner took note of groups who “seem to be cranking up a public opinion campaign to force the California Supreme Court to validate the death penalty with threats” implying that “if you don’t let a couple of guys get knocked off in the gas chamber, we’re going to throw you out of office.”19
Bird’s supporters spoke out on her behalf. Shirley Hufstedler, whose husband, Seth, had chaired the Commission on Judicial Performance hearings, organized a tribute to Bird. In a speech to women’s groups, Jerry Brown blamed Bird’s troubles on sexism. If she had been a man, “she would be far less controversial,” he said.20 Two ex–chief justices—Phil Gibson and Donald Wright—also weighed in. Bird was doing “a good job,” both men insisted, and she did not deserve such ill treatment. Santa Clara law professor Gerald Uelmen noted the “widespread public perception that the decisions of the California Supreme Court have frustrated implementation of the death penalty in California.” However, “the issue is much more complex.”21
Much of the complexity had to do with the Briggs Initiative. More than three years after its passage, justices still had not ruled on its constitutionality. Some factors—confusion on whether intent to kill had to be present, and the ability of judges to tell juries about the possibility for parole—were troubling. All of the justices implicitly understood that finding any aspect of the initiative unconstitutional could unleash a fierce backlash. Nonetheless, in January 1982, in a 6–1 decision, they did just that. The Briggs Initiative’s jury instruction represented “a violation of due process,” the majority declared.22
For pro–death penalty forces, the court’s Briggs decision was unfathomable. Most of the measure remained intact, but nonetheless conservatives took to the airwaves and op-ed pages of major newspapers to accuse justices of thumbing their noses at a citizenry that was sick and tired of criminals. The group Citizens for Law and Order urged state legislators to force justices to rule “within a reasonable amount of time” on capital cases or forfeit their pay.
Attorney General George Deukmejian called the ruling “outrageous” and asked the U.S. Supreme Court to overrule the state high court. Families of crime victims added their voices to the mix; where were their rights? They further demonstrated growing clout by promoting a wide-ranging ballot measure mandating tougher treatment of criminals.
Proposition 8, the “Victims’ Bill of Rights,” appeared on the statewide ballot in June 1982. It restricted the rights of criminals and those suspected of crimes, abolished the “diminished capacity” defense, compelled criminals to provide restitution to victims or their families, and required courts to admit evidence even if doing so violated defendants’ rights. It passed, 56 to 44 percent. Backers wondered cynically how the “liberal” court would rule on its constitutionality.23
In September 1982 the court reluctantly upheld the “Victims’” measure. The wording of Frank Richardson’s majority opinion again made it clear he was responding to intense public pressure, rather than to the measure’s merits. “While we might disagree with both the accuracy of the premise and the overall wisdom of the initiative measure . . . it is not our function to pass judgment on the propriety or soundness of Proposition 8,” Richardson wrote.24
Rose Bird, as she had done in other instances, refused to cater to popular opinion. In a “scathing dissent,” she referenced her childhood hero, journalist Elmer Davis, noting that Davis had once remarked “that the republic was not established by cowards, and cowards will not preserve us. His words apply equally well to the Constitution.” Stanley Mosk’s dissent was nearly as critical: “The Goddess of Justice is wearing a black arm-band today, as she weeps for the Constitution of California.”25
If justices believed that upholding Proposition 8 might defang critics, the November 1982 election of George Deukmejian as governor demonstrated the folly of this notion. Deukmejian, the son of Armenian immigrants, began his political career as a state assembly member from Long Beach in the early 1960s and methodically charted a path to power despite having a personality variously described as “dull,” “unimaginative,” and “plodding.” In some ways, these traits made him more effective than H. L. Richardson or John Briggs, because they led his opponents to underestimate him.
Over his two-decade career, Deukmejian had focused almost entirely on one issue: crime. He fervently believed that California courts and politicians for too long had allowed criminals to get away—literally—with murder. Few people outside the Republican establishment paid him much attention until he became state attorney general in 1978. His timing was propitious. Republican politicians in California and beyond had long railed against judicial “activism,” and the California judiciary under Bird seemed to have lost its aura of invincibility. Voters demanded more accountability from politicians and judges, hence their strong support for ballot measures such as Proposition 13, dealing with property taxes; the Briggs Initiative; and the Victims’ Bill of Rights.
Deukmejian had spent most of his four-year term as attorney general gearing up to run for governor on a platform targeting liberals who “coddled” criminals. These included politicians who ignored small-time scofflaws such as marijuana growers. At one point Deukmejian, wearing a flak vest, accompanied “a posse of armed deputies” in their raid on a Mendocino County marijuana operation.26
The death penalty was his major focus, however. As attorney general he sat on the Commission on Judicial Appointments, and he directly asked nominees about their willingness to uphold death sentences. If they failed to give him the answer he sought, he voted against them. In 1981 he voted against two Jerry Brown appointments to the state supreme court—Allen Broussard and Cruz Reynoso.
“It’s not business as usual any more as regards the judiciary in California,” Deukmejian said. Both Broussard and Reynoso won confirmation anyway, since Bird and presiding state appeals court justice Lester Roth, a Democrat, also sat on the commission. Reynoso became the court’s first Latino justice and Broussard its second African American. Deukmejian also urged voters to oppose Broussard, Reynoso, and a third Brown supreme court appointee, Otto Kaus, on the November 1982 ballot. All three men won voter approval but by much smaller margins than justices historically received. In comments, Bird accused Deukmejian of being racist. “It happens to be a fact that these judges are the only black, the only Hispanic and the only foreign born—Otto Kaus was born in Austria—members of our court.”27
Bird was always Deukmejian’s primary target. She symbolized everything he had long despised about the “liberal” judiciary, whose members claimed to be above politics and yet issued decisions shot through with what he saw as political ideology. In October 1980 he called her “an elitist, not a democrat,” adding, “The people . . . want to know that their courts have been sensitive to the rights of victims, as well as the rights of defendants.” The next year, he accused Bird of “engaging in partisan politics.”28
Deukmejian also put Bird front and center in his gubernatorial campaign, accusing his Democratic opponent, Los Angeles mayor Tom Bradley, of being “a strong and outspoken supporter” of the chief justice. And when the high court ruled the Briggs jury instruction unconstitutional, Deukmejian blamed Bird. During an appearance at a $1,000-per-plate dinner, he accused her of using “every possible means of thwarting” California’s death penalty law.29 His election emboldened him further; for the remainder of his political career and beyond, Deukmejian continued to make Bird his go-to reference whenever he wanted to make a point about wrongheaded liberalism or bad judges.
It is unclear why Deukmejian chose to focus so intently on Bird, since a majority of her fellow justices—even, occasionally, conservatives—voted with her on criminal cases. Clearly, he was catering to his political base, who five years after her investiture continued obsessively to track all of her judicial opinions, which they saw as overwhelmingly biased toward defendants. In one case, for example, she had voted to overturn a teenager’s conviction because it had been based on the uncorroborated testimony of an accomplice. And she was skeptical about the use of hypnosis in trials.30
Additionally, some of his campaign contributors—namely growers and large agribusiness interests—still harbored grudges against Bird for her part in enacting the Agriculture Labor Relations Act. As governor, Deukmejian would consistently work to gut the funding for the agency tasked with mediating disputes and setting union elections for farmworkers.
Deukmejian’s campaign consulting firm also may have encouraged him to emphasize Bird. Spencer-Roberts had managed Ronald Reagan’s campaigns. Stu Spencer and Bill Roberts were extraordinarily successful at mining data for issues designed to elicit emotional responses from voters. Bird had high name recognition and had revealed some personality traits that consultants and politicians could easily summarize in short sound bites designed to draw negative reactions: “soft on crime,” “arrogant,” or “out of touch.”
The latter might be viewed as a subtle reminder that she had never married, or borne children, allowing opponents to frame her as a “women’s libber” who felt superior to and could not identify with women who chose not to pursue careers. Feminism had given women like Bird opportunities they never could have imagined in earlier periods. By the 1980s, however, antifeminists had gained traction by branding career women unnatural beings who challenged tradition and nature by abandoning their roles as wives and mothers in their constant striving to be just like men.31
Finally, Bird often played into the hands of her opponents with judicial opinions and speeches that seemed unnecessarily antagonistic. In a July 1982 speech to the California Labor Federation, for example, Bird accused the “right wing” of “attempting to impose a new rule of law on the judiciary, the rule of extortion and the law of the jungle.” Did Californians really want “a system that simply reflects the views of whoever can harangue the loudest, bully the best, make his threats felt the most forcibly?” One could argue that some percentage of them did, but this was a decidedly impolitic remark from one who needed public support to keep her job.
She sometimes used biting humor to make her points. Describing women’s professional gains in law, she recalled a time when male judges told aspiring female lawyers that the “paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother. This is the law of the Creator.” Without skipping a beat, she added: “I always say to that, who asked Her?” Such comments reinforced critics’ contention that she was “out of touch” with mainstream values.32
When Mathew Tobriner died in April 1982, only three months after leaving the court, Bird was distraught; she had relied on his counsel and friendship. In many ways, he was the father she never had, someone she could look up to and emulate. In a testimonial she extolled Tobriner, who had possessed, she declared, “the heart of a lion and the soul of a dove.” But the essay also offered a hint as to how Bird hoped history might judge her.
Tobriner had been, she wrote, “a man of uncommon grace. He was unselfish and forgiving. He believed deeply in the ultimate goodness of everyone. There was a harmony to his life that sprang from his sensitivity to both the abstraction of the law and the needs of people. He saw life as the delicate balancing of order and liberty, mercy and justice, passion and compassion.”33
Her friends and supporters often expressed puzzlement over the continuing acrimony toward the chief justice. After all, her immediate predecessors had all been staunch civil libertarians. Former chief justice Donald Wright was stumped as well. Bird received the kind of negative attention “that neither I nor my predecessors ever felt,” he said. Even though Wright had authored the decision ending the death penalty in California, “with few exceptions, I never read an editorial about my performance or the performance of my predecessors that was anywhere near the type that are written about her almost repeatedly. I was never . . . an object of publicity for anybody running for public office. I think it’s been an unfair attack. I venture to say that 90 percent of those who are attacking her have never read a complete opinion that she’s written. . . . They are, on the whole, very well done.”34
Some of her strongest partisans went out of their way to describe the Rose Bird they knew as warm, earthy, and kind. She loved watching movies and reading novels and then recounting their plots to friends. Don Vial had worked with Bird since her days at the Agriculture and Services Agency, and she often had dinner with his family. “It wasn’t easy to get her out of that work syndrome,” he said, “but when you did, she’s a totally relaxed person. You could talk to her about anything. She’s very charming and sensitive and appreciates the values of home and the warmth of a family. I don’t think of her as chief justice, she’s just Rose.”35
Alexandra Leichter, a family law attorney in Los Angeles, later recalled Bird as a “stunning, brilliant woman” and a caring friend, who also possessed a zany sense of humor. Bird “remembered every birthday or holiday occasion with a piece of jewelry, a funny card . . . or something exotic.” Leichter was Jewish. Once, when she and Bird rode in a cab together, the driver began spewing “a barrage of anti-Semitic remarks.” Bird insisted on immediately leaving the cab. She “threw her arms around me, apologizing for the hurtful comments of this total stranger.”36
When journalists asked Bird why she declined to reveal this side of herself in interviews, she responded in the way she always had to media questions, with dissembling and quasi-lectures. “Okay, I could sit back and tell you all the nice things that I did for this person and that person. But what kind of a monster does it make of me that I exploit all that? And exploit my mother and exploit my dogs.” The revelation that she had dogs, which needed walking and picking up after, might have made her seem much more like other people, but “my role isn’t to be politically smart and figure out what is the politically smart thing to do. My role is to do what’s right under the Constitution. And if that’s politically unpopular, so be it.”37
Bird had long been under fire, but the emergence of George Deukmejian altered the trajectory of her career in ways no one could have foreseen. “The only way they’ll get me out of here is feet first,” she had declared after her near loss in 1978. She, like many others, undoubtedly underestimated Deukmejian, who possessed a killer instinct when it came to capitalizing on the political weaknesses of others.38
He understood that being elected governor might enable him to push the state in a more conservative direction, at least with regard to issues such as crime and the death penalty. Others might argue that the court should be above politics, but not Deukmejian. He strongly believed that the state supreme court justices had for too long waved the flag of “judicial independence” while thumbing their noses at the electorate. When he took office in January 1983, five of the seven justices were Brown appointees; he hoped ultimately to replace them with his own. His main focus was Bird, and he hoped that keeping her under an unrelenting spotlight might help to facilitate her downfall.39
Without some context, the obsessive focus on violent crime in the late 1970s and early 1980s seems difficult to understand. Members of the public seemed convinced that hundreds and possibly thousands of predators roamed the streets at will and that only long prison sentences and ramped-up executions would stop their numbers from growing. This mentality can largely be attributed to the ability of conservatives to frame the debate following high court decisions that eliminated the death penalty in 1972.40
Abolitionists had been making inroads in California and nationally for more than a decade before the rulings, but most people pegged their chances of actually ending the death penalty as minimal at best. Then came Chief Justice Wright’s February 1972 opinion declaring its application to be arbitrary and capricious and thus “cruel or unusual.”41
Wright’s opinion sparked public outrage, particularly because it invalidated the death sentences of all 107 death row inmates in California, including cult killer Charles Manson; Sirhan Sirhan, convicted killer of Robert F. Kennedy; and Gregory Powell, the “Onion Field” slayer of a policeman, made famous by writer Joseph Wambaugh in a book of the same name. “People began to wake up to the fact that the court was out of control,” Christopher Heard, head of the Criminal Legal Justice Foundation, told a reporter.42
As California struggled with new death penalty laws, a number of chilling murders captured public attention and spawned sensational media coverage. Reporters quickly gave the perpetrators nicknames—“The Freeway Killer,” “The Hillside Strangler,” “The Night Stalker”—that seemed designed to ramp up the fear factor. Capital punishment proponents claimed that only the prospect of execution could deter brutal killers. “There are a lot coming, more and more and more. And you and all of us hiding behind a barrier, a little guardhouse up the hill, isn’t going to stop it,” one prosecutor warned during a trial.43
Media outlets were quick to capitalize on public fears, and reporters sought out experts to explain the perceived increase in crime. The Los Angeles Times, for example, conducted a “random survey” on the topic in the early 1980s. “The coroner has so many bodies, he doesn’t know where to put them,” said Armand Arabian, a superior court judge later named by Deukmejian to the state supreme court. Criminals “don’t have a fear of apprehension, they don’t have a fear of conviction and they don’t have a fear of penalty,” he added. Police captain John Salvino knew exactly where to place the blame: “The courts are the main problem with the justice system today, and Rose Bird is the main problem with the courts.”44
At the same time, the emergence of media-savvy victims’ rights groups forged bonds of sympathy between ordinary citizens and crime victims’ relatives. Doris Tate may have created the first such organization, Citizens for Truth. Tate’s daughter Sharon had been murdered in August 1969 along with four others under orders from Charles Manson. The crime riveted America: it occurred in a wealthy Los Angeles enclave, and Tate had been married to film director Roman Polanski and was eight months pregnant at the time of her killing. Manson’s followers murdered two other Los Angeles residents the following night.45
The commutation of Manson’s death sentence enraged Doris Tate. “Since when do we not have to pay penance for the things we do?” she asked in an interview. “Sharon was stabbed 16 times and hung by the neck.” To maintain her sanity, Tate turned her energies toward lobbying lawmakers and raising money. She also befriended news reporters and the Los Angeles district attorney; until her death in the 1990s, she attended every prison hearing for incarcerated members of the “Manson Family.” (Her surviving daughter, Debra Tate, has continued her mother’s work.) Doris Tate blamed the state supreme court for taking too long to execute condemned inmates. “What happened to the Manson family was that while the court was sitting on their appeals, the death penalty was overturned.”46
Patti Linebaugh also created an organization, Society’s League Against Molesters (SLAM), to pressure lawmakers to keep pedophiles in prison. Linebaugh’s two-year-old granddaughter Amy Sue Seitz had been kidnapped from her babysitter’s front yard in 1978, sexually assaulted, and murdered by Theodore Frank, a recidivist sexual predator. Frank “had seven prior convictions,” Linebaugh told a reporter. “There was nothing I could do as far as Amy was concerned, but I felt a responsibility to the public and to the families of victims.” By the early 1980s, SLAM had chapters in more than forty states, and Linebaugh spoke with reporters and law enforcement officials throughout the country.47
The Orange County judge who sentenced Frank to death predicted that he would “die of old age” in about fifteen years, not in the gas chamber. “I’d bet on it.”48 Yet Linebaugh was stunned when the court actually overturned Frank’s death sentence, and she vowed “to continue every effort that I can possibly extend to see Theodore Frank die.” Stanley Mosk wrote the majority opinion in the case. Police had illegally seized private diaries without obtaining a search warrant, he wrote. In her concurrence, Bird noted that “the freedom from governmental intrusion into an individual’s papers has long been recognized in law.”49 Republican state senator Ed Davis called the ruling “a classic case of the continuing, incredible misinterpretation of the search and seizure amendment.”50
Groups such as Tate’s and Linebaugh’s provided a venue for death penalty proponents to vent and also served as a reminder that terrible crimes could happen to anyone, even people married to famous movie directors. If executions could deter even one perpetrator from committing a crime, capital punishment was worth it. Many, if not most, of the victims’ groups were led by mothers, a factor that made them even more effective politically and served as an additional reminder of how significantly Bird deviated from the “traditional” woman. According to this long-held stereotype, by natural instinct women were supposed to react emotionally and viscerally when it came to crimes against children.
But Bird’s job required her to approach horrific crimes with a detached and clinical mindset. Gender clearly played some role in these calculations, since the same standards did not apply to her male colleagues, all of whom had children and yet approached criminal cases with the same detachment. Away from public view, Bird said more than once that “my heart goes out to Amy Sue’s grandmother. . . . There’s nothing I can say in terms of assuaging the pain that she’s gone through.” She understood, she said, how someone experiencing such a tragedy “might never understand the need to uphold legal procedures, even in cases involving defendants such as Frank.”51
Death penalty advocates did not want to hear judges or legal experts blame “constitutional requirements” and “complexities” for the lack of executions. They demanded justice, providing a vocal and supportive audience for conservative politicians, whose numbers continued to grow through the early 1980s. The U.S. Supreme Court seemed to reflect this changing climate by retreating from two decades of rulings favoring defendants’ rights. In July 1983, for example, the court overruled the California Supreme Court with regard to the Briggs Initiative’s provision for informing jurors that life sentences could be changed to something less. Ronald Reagan’s first appointee—and the court’s first woman justice—Sandra Day O’Connor wrote the 5–4 decision finding the jury instruction constitutional.
Notifying the jury of governors’ ability to commute life sentences “invites the jury to assess whether the defendant is someone whose probable future behavior makes it undesirable that he return to society,” she declared. At the same time, however, O’Connor suggested that California courts might revisit the initiative’s constitutionality using state rather than federal constitutional grounds. The California court did just that, ruling that the jury instruction violated due process guarantees of the state’s constitution. The state court also reinforced the requirement that intent to kill be present to confer a death sentence on a defendant.52
What could justices do to assuage critics under these circumstances? Laws governing capital punishment were too difficult to explain in a thirty-second sound bite, or even a thirty-minute speech. How to explain, for example, that enacting two separate death penalty laws a year apart significantly complicated the decision-making process? As law professor Gerald Uelmen saw it, the Briggs Initiative was shot through with “contradictions, ambiguities, ignorance of precedent, inconsistencies and erroneous citations all around.”53
Californians might complain that the court “dragged its feet” on capital cases, but many death row inmates went months or years without attorneys willing to represent them, since the state authorized payment of only thirty-five to forty dollars per hour, and few private attorneys earning up to ten times that amount were willing to take on the work. That meant public defenders, already loaded down with cases, had to add more. Additionally, the numerous grounds that existed for appeal at both the state and federal level allowed condemned individuals to string out their appeals for years.54
Earl Lloyd Jackson’s case offers a window into the process. It took more than a year for him to go on trial after his 1977 arrest. In January 1979 jurors sentenced him to death, and state supreme court justices heard his case in early 1980. His appellate attorneys covered familiar ground in their argument: trial counsel had been incompetent, prosecutors engaged in misconduct, and the judge improperly admitted evidence. None of this swayed the majority of justices, who upheld his death sentence. Jackson’s attorneys then appealed to the U.S. Supreme Court, maintaining that race had played a role in Jackson’s sentence—he was black and his victims were white. It took another year for the court to deny this petition, whereupon his attorneys filed another appeal with the state supreme court, declaring that evidence had been improperly suppressed.
The case and Jackson’s death sentence were still in limbo when Deukmejian took office in January 1983, vowing to push capital cases through the pipeline. Death penalty advocates could not have known that, despite a second sentence affirmed by the state high court, Jackson would continue appealing in federal and state courts until in 2008 a federal court overturned his death sentence but not his conviction. Another jury then decided that he should, in fact, be executed. As of 2016, Earl Lloyd Jackson remained on death row at fifty-eight years old.55
In many cases federal courts issued most of the rulings that kept condemned inmates alive. For example, jurors in San Diego condemned Robert Alton Harris in March 1979, and less than two years later the state supreme court upheld his death sentence. Over the next decade, his attorneys made dozens of appeals (mostly to federal courts) before the U.S. Supreme Court finally put a stop to them. Among the issues: severe abuse Harris suffered as a child that led to brain damage and the state’s refusal to pay for necessary psychiatric tests. When Harris died in the gas chamber in April 1992—fourteen years after his conviction—he became the first executed inmate in California since 1967.56
As the clamor for executions increased, Bird tried to remain above the fray. She appeared in public only on rare occasions, mostly to make speeches and accept awards. In 1984 she accepted a “Distinguished Woman of the Decade” honor from the organization Women in Business. In her remarks, she lauded the increasing numbers of women judges. “When I took office, there were few women on the bench in any state. Now in California we have 125 women on the trial and appellate benches, and of course, a woman on the Supreme Court.”57
But she obviously felt the pressure. While not directly addressing the death penalty, in a June 1983 essay for the Los Angeles Times she offered an instructive lesson on how, from her perspective, the judiciary operated in the general sense. Judges were like umpires, Bird wrote. “They observe the facts . . . and apply the rules of the game fairly and evenhandedly. . . . When an umpire has called ‘strike three,’ the batter is out, no matter how loudly he, his team or his team’s fans may protest. . . . Were the umpire to do otherwise, there would be no order left in the game.”
Many readers found the essay irritating and condescending and its tone flippant and self-righteous. In retrospect, it also revealed a certain naiveté, since Bird seems not to have anticipated any hostile reaction. In fact, readers flooded the Times with letters. “The increasing attacks on the courts have come because there is a feeling that they have turned a blind eye to the legitimate concerns of the public,” wrote one respondent. “Right-wing politicians did not create public concerns about the role of the judiciary, they merely exploit them,” wrote another. A third accused Bird of “consistently giving the known criminal a fourth strike.”58
By the mid-1980s, anger toward the court in general, and Rose Bird in particular, had intensified. Between 1979 and the end of 1984, 125 men had been condemned. Yet the supreme court had issued rulings in only 45 cases. As Bird supporters often pointed out, however, California was not alone with its backlog of cases: death rows nationally held more than 2,700 condemned individuals. The thirty-eight states with capital punishment had executed a total of 50 people between 1977 and 1985.59
Opponents were not swayed by statistics showing that the court had upheld the vast majority of convictions, nor by the fact that all of the condemned remained on death row pending the outcome of their penalty phase retrials. Bird had declared that she “took an oath to uphold the Constitution. I have faithfully tried to keep that oath,” but she alone among the seven justices had never voted to uphold a single death sentence, an action that seemed to belie her words.
The pressure compelled justices eventually to address the growing clamor. Bird declared capital appeals “the equivalent of sometimes five to ten separate opinions because there are so many issues that have to be researched.”60 Just before he left the court in 1983, Frank Newman suggested cutting down the backlog by eliminating the requirement that all capital cases go directly from the trial court to the state’s highest court. Instead, cases that raised no new constitutional issues could go to the court of appeal.61
Mosk reminded critics that capital appeals represented only a small part of the justices’ overall responsibilities. They also dealt with noncapital criminal cases and civil matters. If politicians wanted the capital appeals decided faster, Mosk suggested, they should add four justices to the court and divide the workload between civil and criminal cases. Nothing came of his suggestion, or Newman’s, but in 1982 the state legislature authorized the creation of a permanent staff of attorneys to help with the increased workload. These lawyers largely replaced annual law clerks and student interns, and they worked for the court as a whole rather than for individual justices. Eventually the central staff grew to thirty, with half working on criminal matters and the other half on civil cases.62
Opponents were less concerned about the court’s ability to handle capital appeals than they were with the results. By early 1985 justices had upheld only three death sentences, and two of those—Earl Lloyd Jackson’s and Robert Alton Harris’s—had come before 1982.63 Critics pondered publicly: What did it take to get a death sentence upheld? The court, for example, had deemed People v. Ramos an “almost perfect” trial, and yet justices overturned Marcelino Ramos’s death sentence not once but twice.
Ramos had worked as a janitor at a Taco Bell in Santa Ana. One night he decided to rob the restaurant. He forced two employees into a store cooler and then, after telling the victims to “say your prayers,” shot both in the back of the head. One survived and testified against Ramos, who was condemned and sentenced to die. The state high court first heard Ramos’s case in late 1981. Tobriner acknowledged that the trial had been exceptionally well-handled by all parties, at least until the judge issued the disputed Briggs Initiative instruction informing jurors that a life sentence did not necessarily mean Ramos would die in prison.
Citing the jury instruction, the court overturned Ramos’s death sentence while upholding his conviction. Ramos remained on death row while his case went back to the original court for a new penalty hearing. A second jury sentenced him to death. In November 1984 the case went back to the supreme court, which again invalidated his death sentence. The court had deemed intent to kill necessary for a death sentence, and it was unclear whether Ramos had intended to actually murder his victims.64
Los Angeles district attorney Robert Philibosian blasted both Ramos decisions. He placed the blame squarely on Bird, despite the fact she had not authored either ruling (but she had concurred without comment in both). And the decisions had been unanimous. Nonetheless, he accused her of “waging a war on prosecutors.” In November 1986 Bird and four other justices would appear on the statewide ballot for confirmation. Philibosian and other opponents vowed that this time, she would not win a new term, and in speeches throughout the state, he began urging California voters to take care of “the problem.”65
Within weeks of the second Ramos ruling, Republican campaign consultant Bill Roberts announced that he planned to lead the charge against Bird under the auspices of a newly formed group, Crime Victims for Court Reform. Roberts’s leadership meant this effort would differ from earlier campaigns to oust Bird. Roberts was a well-connected consultant with a stable of high-profile clients, including Ronald Reagan and George Deukmejian. He also had a vast network of contributors and access to the most powerful media outlets. Others might snarkily refer to “Rosie and the Supremes,” chant slogans such as “Bye-Bye Birdie,” or brandish photos of stuffed turkeys named “Rosie.” Roberts would labor—not altogether successfully—to maintain decorum and seriousness and tightly control his message.
Bird was Roberts’s primary target, but conservatives understood by early 1985 that they had to defeat more than one justice to garner a conservative majority. Malcolm Lucas, Deukmejian’s former law partner, joined the court in early 1984, replacing Richardson. Yet the ideological makeup remained the same—six liberals and one conservative. Opponents began to eye Cruz Reynoso and Joseph Grodin. Getting rid of three justices at once would enable George Deukmejian to put an end to the four-decade reign of liberals on the storied California institution. Conservatives had longed dreamed of this possibility; by 1985 the goal seemed eminently achievable.66