Monday, September 17, 2001
Page 4
Erroneous ‘Torture’ Instruction Requires Voiding Death Sentence—Lawyer
By a MetNews Staff Writer
A San Joaquin Superior Court judge’s erroneous instruction on the torture-murder special circumstance requires vacating a death sentence, a Century City attorney has told the Ninth U.S. Circuit Court of Appeals.
David Senior argued Thursday that under Ninth Circuit precedent, the sentence imposed on Michael Angelo Morales is invalid.
Morales has been on Death Row since 1985, when he was convicted of murdering 17-year-old Terri Winchell. Winchell was the girlfriend of a fellow student who was also involved in a homosexual relationship with Morales’ cousin, Ricky Ortega.
Prosecutors said that Ortega enlisted Morales’ help in killing Winchell out of jealousy. Winchell was raped, beaten, stabbed multiple times, and had her jaw broken, according to testimony.
Ortega was tried separately and sentenced to life in prison.
Morales was sentenced to death, after jurors found special circumstances of torture and lying-in-wait were found true. The torture-special-circumstance instruction that was given by the judge was the same one that the Ninth Circuit found unconstitutional in Wade v. Calderon, 29 F.3d 1312 (1994).
The instruction failed to explain that proof of intent to inflict “extreme pain” is required to establish the special circumstance.
Deputy Attorney General Keith Borjon argued that any Wade error made no difference, because the lying-in-wait special circumstance was sufficient.
That argument drew a skeptical response from the judges.
Judge Andrew Kleinfeld noted that jurors were told, prior to deliberating the penalty, to base their verdict on the special circumstances already found, as well as on the other evidence. “Quite possibly” the jurors would have returned a life-without-parole verdict in the penalty phase if they had previously found only one special circumstance, the judge suggested.
Judge Ferdinand F. Fernandez joined in, suggesting that a finding of torture would have far greater weight than one of lying-in-wait. He analogized to the imposition of death by beheading in medieval Europe, when the condemned would “pray for a good headsman” rather than “a sloppy one” who would fail to decapitate the person with a clean stroke and leave the person to suffer.
Borjon argued that any error was still harmless under the “horrible facts” of the specific case. Winchell, he said, was “just obliterated.”
Copyright 2001, Metropolitan News Company