Metropolitan News-Enterprise


Friday, November 2, 2001


Page 3


Judicial Retention Process Does Not Violate Capital Defendants’ Rights—S.C.




The fact that California Supreme Court justices must be retained by a pro-death-penalty electorate does not render the capital sentencing process unconstitutional, the state Supreme Court ruled yesterday.

In a unanimous decision, the justices affirmed the second of two death sentences imposed on Martin James Kipp, rejecting arguments by  Kipp’s court-appointed lawyer, Ross Thomas of San Francisco.

Thomas, citing the extraordinary increase in the percentage of death sentences upheld after three justices were voted out of office in 1986, contended that it is a conflict of interest for justices subject to the retention process to hear capital cases. A defendant cannot get a fair hearing on appeal, he argued, when “for a justice of this Court to keep his or her job, death sentences must be affirmed.” 

Justice Joyce L. Kennard gave short shrift to the plea.

“Even if we assume for argument’s sake that there is some relationship between affirmance of death sentences and retention in office, defendant fails to demonstrate that a justice of this court must affirm every death sentence or any particular death sentence, much less defendant’s own sentence,” the justice wrote. “Thus, defendant does not persuade us that members of this court have a disabling conflict of interest in determining this appeal.  Even if such a conflict of interest existed, moreover, it would apply equally to all California judges and, under the common law rule of necessity, the justices of this court would not be disqualified.”

Then-Los Angeles Superior Court Judge Michael Nott, now a justice of the Court of Appeal, sentenced Kipp to death for the September 1983 murder of Tiffany Frizzell. Frizzell was found, strangled and apparently raped, in her room at the Long Beach Ramada Inn where she was staying  while waiting for her college dormitory to open for the fall term.

Kipp was previously sentenced to death by Orange Superior Court Judge Donald A. McCartin for another 1983 rape-murder, in Huntington Beach. Evidence of the Frizzell murder, with which Kipp had not yet been charged, was admitted by McCartin to show a common design or plan.

The death penalty imposed in that case was affirmed by the state high court in 1998 and is presently being challenged in federal court. Kennard wrote the opinion in that case as well, concluding, among other things, that allowing evidence of the Frizzell murder to be introduced was not an abuse of discretion.

In yesterday’s opinion, Kennard also rejected a number of objections to Nott’s evidentiary rulings, including his decision to admit—during the prosecution’s penalty phase rebuttal case—a redacted copy of a letter Kipp wrote to his wife after he was sentenced to death in the Orange County case. Kipp told her he wanted to rape women deputies at the jail and kill prosecutors and their families.

“The letter was relevant to rebut defense evidence that defendant committed the two capital murders during a relatively brief period of aberrant behavior, that he had since expressed regret and shame for the murders, and that he was unlikely to commit additional offenses if imprisoned for life,” the justice explained. “…Although defendant may well have been angry, frustrated, and discouraged at that time, defendant does not plausibly explain why the jury could not properly consider these emotions in deciding the appropriate weight to give the evidence.  The evidence was properly admitted in rebuttal.”


Copyright 2001, Metropolitan News Company