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The Lucas Court and the Penalty Phase of the Capital Trial: the Original Understandingt

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The Lucas Court and the Penalty Phase of the Capital Trial: the Original Understandingt The Lucas Court and the Penalty Phase of the Capital Trial: The Original Understandingt JOHN W. POULOS* TABLE OF CONTENTS INTRODUCTION ........................................................... 523 I. THE EvOLUTION OF THE PENALTY PHASE OF THE CAPITAL TRIAL IN CALIFOR- NIA ............................................................... 527 A. The HistoricalBackground ...................................... 527 B. The 1973 Legislation ........................................... 531 C. The 1977 Legislation ........................................... 533 D. The 1978 Death Penalty Initiative ................................ 536 E. A Summary of the Changes in the Penalty Phase Proceedings Wrought by the 1978 Initiative ........................................... 540 1. The Aggravating and Mitigating Factors ....................... 540 2. The Penalty Phase Procedures................................ 541 3. The ProceduresGoverning Hung Juries ........................ 541 4. The Automatic Modification Procedure ........................ 542 II. THE RECURRING PENALTY PHASE ISSUES ............................... 542 A. Introduction ................................................... 542 B. The Recurring Issues ........................................... 546 1. The Anti-Inflation Rules ..................................... 546 a. The Bird Court ..................... ................ 547 b. The Lucas Court ..................................... 551 C. The Status of the Law ................................ 557 2. Ramos Error............................................... 559 a. The Bird Court ...................................... 559 b. The Lucas Court ..................................... 561 c. The Status of the Law ................................ 562 3. Robertson Error ............................................ 562 a. The Bird Court ...................................... 562 t Copyright D 1990 John W. Poulos * Professor of Law, University of California, Davis. 1958 B.A., Stanford Univer- sity; 1962 J.D., University of California, Hastings College of the Law b. The Lucas Court .................................... 566 c. The Status of the Law .............................. 567 4. Boyd Error ......................................... 568 a. The Bird Court ..................................... 568 b. The Lucas Court .................................... 568 c. The Status of the Law .............................. 569 5. The Failureto Delete Unsupported Factors .................... 569 a. The Argument ..................................... 569 b. The Lucas Court ................................. 574 c. A Proposal .................... ..................... 578 d. The Status of the Law .............................. 580 6. The 1978 Mandatory-Sentencing-FormulaInstruction ............ 580 a. Introduction ................. ...................... 580 b. The Bird Court ...................................... 581 c. The Lucas Court ..................................... 590 d. The Status of the Law ........................... 596 7. The Failure to Instruct on the Proper Use of Mitigating Evidence (The Unadorned Factor (k) and Factor ()) .................... 598 a. Introduction ...................................... 598 b. The Bird Court .................................... 600 c. The Lucas Court ................................ 603 d. The Status of the Law ............................... 609 8. The Anti-Sympathy Instruction at the Penalty Phase ............ 611 a. Introduction ........................................ 611 b. The Bird Court .................................. 611 c. The Lucas Court ............ ............. .......... 613 d. The Status of the Law ........................... 620 9. Penalty Phase Error and The Lucas Court ................. 620 III. PENALTY PHASE JURY INSTRUCTIONS .................................. 627 A. Introduction ....................................... ........... 627 B. An Analysis of The Factor (k), Factor U), and Mandatory-Sentencing- Formula Instructions ..................................... 630 1. The Interpretationof Jury Instructions: The Traditional Rule .... 631 2. The Cure Techniques .................................. 633 a. The Juror's Oath ............................... 634 b. The Juror's Courtroom Experience ........... ........ 634 c. The Instruction on Jury Instructions ................. 635 d. The Context: The Medium is Part of the Message ....... 635 e. The Timing of the Charge......................... 636 f The Written Instructions Are Given to the Jury .......... 637 g. The Arguments of Counsel Conflict with the Instructions . 637 h. The Rule Governing Conflicting Jury Instructions ......... 640 i. The Primacy of the Court's Jury Instructions ............ 641 j. Policy and the Adversary System ..................... 644 k. The Case Law ................................. 645 L Conclusion ....................................... 661 C. The Anti-Sympathy Instruction ................................ 662 1. Analysis ............................................ 662 2. Conclusion............................................... 668 IV. CONCLUSION ........................................ .............. 669 APPENDIX ................................................................. 674 [VOL. 27: 521, 1990] Penalty Phase of the Capital Trial SAN DIEGO LAW REVIEW INTRODUCTION This is the third in a series of articles on capital punishment in California.' This article focuses on the development of the law appli- cable to the penalty phase of capital trials. Part I chronicles the cre- ation of the "penalty phase" as a separate component of the capital trial in California, and the adoption of the statutory provisions gov- erning that segment of the trial in the 1977 death penalty legislation and the 1978 death penalty initiative. Inasmuch as the only amendments to the 1977 Legislation were made by the 1978 Initiative and the 1978 Initiative has not been amended since its adoption by the voters of California, the task of elaborating penalty phase law has been undertaken exclusively by the courts of California.2 The job initially fell on the shoulders of the California Supreme Court under Chief Justice Rose Bird, for it was during the Bird court's tenure that the 1977 Legislation and the 1978 Initiative became effective.3 After the Bird court's tenure 1. The first article is Poulos, Capital Punishment, The Legal Process, and the Emergence of the Lucas Court in California,23 U.C. DAVIS L. REV. 157 (1990) [herein- after Poulos, Capital Punishment]. That article traces the history of the capital punish- ment controversy in California through the retention election of 1986, the decline of the Bird court, and the emergence of the Lucas court. It also identifies differences in the way the two courts have handled automatic appeals under two statutes, the 1977 Legislation and the 1978 Initiative. It analyzes how this change was produced and the voting behav- ior of each of the justices of the Lucas court. The article ends by assessing the question of whether the Deukmejian appointees have produced this change illegitimately or by the permissible application of the relevant legal principles in a way quite different from the way they were applied by the Bird court. The second article is Poulos, The Lucas Court and CapitalPunishment: The Original Understanding of the Special Circumstances 30 SANTA CLARA L. REV. 333 (1990) [hereinafter Poulos, The Lucas Court). That article focuses on the development of the law of special circumstances. It (1) chronicles the adoption of the concept of the special circumstances as a device to define death eligibility in California; (2) examines the work of the first year of the Lucas court with respect to the special circumstances, and com- pares the Lucas court's development of special circumstance doctrine with the develop- ment of special circumstance doctrine by the Bird court; (3) explores the purpose, struc- ture, and function of the special circumstances, and the fundamental principles governing their interpretation; and (4) it looks at the specific law of the special circumstances as articulated by both courts, and compares the two bodies of law whenever it seems appro- priate to do so. 2. Part of this task, of course, was also discharged by the various Courts of Appeal in California. When the defendant is prosecuted for first degree murder and a special circumstance is alleged and found true, and the sentencing authority imposes a sentence of less than death, the appeal is to the appropriate division of the Court of Appeal. Since this article is concerned only with the Supreme Court of California, the doctrine elabo- rated by the Courts of Appeal is not considered in this article. 3. The first automatic appeal to be decided by the California Supreme Court under the 1977 Legislation was People v. Teron, 23 Cal. 3d 103, 588 P.2d 773, 151 Cal. Rptr. 633 (1979). Teron was decided on January 11, 1979. Id. The first automatic appeal lapsed, the task was taken up by the Lucas court.4 This article exam- ines the work of the first year of the Lucas court with respect to the law of the penalty phase of the capital trial, and compares the Lucas court's development of that doctrine with the doctrine developed the Bird court. Part II examines nine separate penalty phase issues that have been faced by both courts.5 With two exceptions, the specific law articu- lated by both courts is discussed along with a comparison of the way the two courts handled each issue.6 Given the penchant of judges and the
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