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Fate of Death Row Prisoners Hangs on Supreme Court Case

March 19, 1994

LOS ANGELES (AP) _ The fates of all death row prisoners in California could be at stake when the cases of two murderers sentenced to the gas chamber go to the U.S. Supreme Court this week.

Lawyers for the two want a ruling that California’s jury instructions in death penalty cases are too vague to be fair in deciding life or death. The state sees catastrophe if the instructions are invalidated.

″We could potentially be facing penalty retrials of every case on death row,″ said Assistant Attorney General William Prahl. ″It would be a nightmare, literally a nightmare.″

Prahl said defendants are sufficiently protected to comply with the Eighth Amendment’s ban on cruel and unusual punishment. ″There’s no one on the row who shouldn’t be there.″

Defense attorney Howard Gillingham accused Prahl of using the threat of retrials for all 381 death row prisoners in the state as a scare tactic.

″For the attorney general to argue this is going to reverse 381 cases is like calling, ’There’s a bogeyman out there,‴ Gillingham said.

Only cases still on appeal, perhaps 100, could be affected, he said.

The Supreme Court hears arguments Tuesday in the case of Gillingham’s client, Paul Palulaua Tuilaepa, and another death row inmate, William Proctor. The two were plucked from the mass of death penalty appeals and joined by the justices for review.

At issue is whether guidelines given to jurors for choosing between life and death are so ambiguous they allow inadmissible factors to weigh in the decision. The American Civil Liberties Union and other groups argue that racism could have influenced the case of Tuilaepa, a Samoan.

The focus is on an instruction that jurors consider ″circumstances of the crime,″ among other factors, in deciding between life and death.

Attorney Wendy Lascher, representing Proctor, argues in her brief that the term ″circumstances of the crime″ is so vague ″it allowed the jury to treat any irrelevancy which may have caught its fancy as a ’circumstance of the crime.‴

Despite the seriousness of their crimes, the men don’t deserve death, their attorneys said.

Proctor was convicted of raping, torturing and murdering a 55-year-old widowed school teacher. Tuilaepa was found guilty of murdering one man and seriously wounding four others during a bar robbery.

Under California law, a defendant convicted of a capital offense receives a separate penalty phase trial in which jurors choose between the death penalty or life in prison without possibility of parole.

In some states, the law spells out the aggravating and mitigating factors to be weighed in death penalty cases. But in California, factors are not differentiated and judges are not required to instruct juries on how to weigh circumstances of the defendant’s life and crime.

Gillingham notes that one reason the death penalty was outlawed in 1972 was ″because there were no guidelines for juries″ and death was being meted out capriciously. In response, California added 11 factors to be considered in setting penalties.

Lascher said in her brief: ″The trial judge reads a list of factors for the jury to weigh, but does not explain which of the listed factors should be treated as aggravating or mitigating, nor even what the words aggravating or mitigating mean.″

The law, she said, is ″unprincipled crazy-quilt application of the ultimate penalty.″

Since the death penalty was reinstated in 1977, California’s death statute has come under Supreme Court scrutiny four times; each time the state won. But legal experts say this time may be different.

″I think the defendants are correct that given what the Supreme Court has held in the past, they have to reverse in these cases,″ said Loyola University Law School Professor Stanley Goldman.

He cites the court’s opinion in a Mississippi case two years ago. The court struck down a death sentence because jurors were allowed to consider if the crime was ″especially heinous, atrocious or cruel.″

The court said that was too vague and ″a vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer’s discretion.″

Gillingham and Lascher said that ″circumstances of the crime″ is far more vague.

″We’re not asking for a new law,″ Lascher said. ″We are saying that whenever you ask a jury to weigh the question of who lives and who dies, you have to define the factors so everyone understands them the same way.

″We’re not suggesting that jurors can’t consider the circumstances of the crime,″ she said. ″We’re just saying it’s not clear enough.″

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