Chief Justice finds death penalty record imperils her seat. GOP wants to oust California's Rose Elizabeth Bird in 1986

In the campaign to unseat Chief Justice Rose Elizabeth Bird, and several of her colleagues on California's Supreme Court, each new court decision is a potential political hand grenade. And none are more potent than death-penalty rulings -- the most sensitive and weighty decisions a judge can make. A key argument made by current opponents of Miss Bird's confirmation is that she is personally opposed to the death sentence and will seek any technical pretext to avoid upholding one.

With heavy artillery like this, the conservative Republicans organizing for the chief justice's ouster have already made it the most heated political battle the state will see in 1986. Miss Bird and four other justices face yes-or-no confirmation elections -- normally quiet elections that no justice in California has ever lost.

The climate has changed. Miss Bird has raised more than half a million dollars, held a major fund-raising dinner, and hired Pat Caddell, the Democratic pollster who helped Jimmy Carter win the presidency. The opposition has raised nearly three times that figure, and some national conservative groups are watching the race closely.

``It's a political battle in a new battlefield for us,'' says Michael Steinmetz, president of the conservative American Legislative Exchange Council Political Action Committee. ``If we find that we can motivate people in this race, then we will take a much more serious look at other states.''

No executions have taken place in California since a new death-penalty statute was passed by the state Legislature in 1977. Following the 1972 US Supreme Court decision that struck down most capital-punishment laws because of vague and discriminatory practices, many states revised their laws. Of the 41 death-sentence cases heard by the court, only three have been upheld. Miss Bird voted against affirmation in all 41 sentences.

According to a California Poll survey last spring, 83 percent of California's residents favored the death penalty. In 1978, a bill designed to broaden the use of capital punishment was passed by popular referendum. So each new reversal of a death sentence becomes grist for charges that the Bird court is thwarting the popular will. A state poll in May, showed 46 percent of the electorate would vote against Chief Justice Bird's confirmation and only 36 percent would vote for it.

Democrats and Republicans are uneasy with the high court's record on death sentences. Recently, two state Assembly Democrats and a Republican have been working on a bill to toughen the death-penalty statute.

One sponsor of the bill, Assemblyman Richard Katz, admits many, but not all, of the court's decisions are due to flaws in the 1978 initiative. ``I have the sense that the court is bending over backwards to make the law go the way they would like it to be, rather than the way it is.''

But there are other reasons that California has yet to execute anyone.

Recent executions in the United States have taken place most often in Southern states. These states have had death-penalty statutes longer than other states. Convicts are usually executed six to 10 years after the murder, according to Samuel Gross, law professor at Stanford.

Indeed, it will probably be soon after next year's election that the state will go ahead with the executions in the three capital cases already affirmed by the Bird court, notes Professor Gross.

``There usually are good reasons for not affirming death sentences,'' he says. Federal rules in meting out capital punishment he calls ``bizarre'' and ``self-contradictory.'' California's 1978 initiative also has ``serious systematic problems.''

Court decisions have clarified many of the murky spots in the California law. For example, under the so-called ``Briggs'' instruction, the jury was informed that the governor can commute a life-without-parole sentence. The high court felt this instruction prejudiced the original jury to favor the death penalty. Today, the Briggs instruction is no longer read.

Clarifications such as this should mean that the high court will affirm more death sentences in the future. ``I would expect that things would smooth out rapidly in the next year or two,'' Gross says.

But others here say the problem lies with the court, rather than with the law. ``The court does not apply neutral principles,'' says William Wood, spokesman for the California District Attorneys Association.

Steven Glazer, spokesman for Chief Justice Bird's campaign committee, disagrees: ``The issue in this election is the competence of a justice, not their adherence to the agenda of a special interest.''

Chief Justice Bird had no judicial experience when she was appointed by former Gov. Edmund G. Brown Jr. in 1977. She was confirmed to serve until the 1978 elections, she received a record-low 51.7 percent of the vote to retain an eight-year unexpired term. Since then there have been several attempts to remove her.

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