Metropolitan News-Enterprise


Tuesday, March 19, 2002


Page 1


Ninth Circuit Upholds Order for New Death-Penalty Trial in Murder


By KENNETH OFGANG, Staff Writer/Appellate Courts


An El Dorado County resident convicted of murder, rape and kidnapping in connection with the 1981 abduction of two women at gunpoint is entitled to a new penalty trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel upheld a 1998 order by U.S. District Judge Lawrence K. Karlton of the Eastern District of California—who has since taken senior status—granting James Leslie Karis Jr.’s habeas corpus petition based on ineffective assistance of counsel.

Ninth Circuit Senior Judge Procter Hug Jr., joined by Senior Judge James R. Browning, agreed with the district judge that jurors likely would have opted for a life-without-parole sentence had they known of Karis’ abusive childhood.

There was no reasonable explanation for Karis’ penalty-phase attorney, William Owen of Sacramento, not to have discovered that evidence through investigation and presented it to the jury, Hug said.

Dissenting Judge Andrew Kleinfeld agreed that Owen’s defense was unusually brief. But it wasn’t ineffective under 1982 standards, he argued.

Even if it was, the judge said, it made no difference because the defendant “was a very bad man” whom jurors would have voted to execute regardless of what evidence was presented in his behalf.

The prosecution’s evidence was that Karis kidnapped the two women off a Placerville street as they walked during a break from their jobs at the El Dorado County Welfare Department.  He drove them out of town to a secluded area, raped one of them, forced them into a hole, shot them both, and left them to die.

One of the women was able to crawl out and obtain help from a passing truck driver. The other was dead when paramedics arrived.

Suspect Arrested

Karis was arrested in Sonoma County a week later, after kidnapping and threatening two more women and telling them he had committed a murder, according to testimony at his trial, which was held in Sacramento.

Karis was on parole for rape at the time of the El Dorado County murder. The crime for which he was on parole was committed three months after he was released from prison after serving an earlier sentence, also for rape.

Karis, who at age 49 has spent almost his entire adult life in custody, denied the murder, claiming he was home alone at the time. His defense lawyers, Owen and Stephen Tapscott, presented expert testimony from Dr. Elizabeth Loftus, a nationally known authority on the perils of eyewitness identification.

Jurors rejected the defense, finding Karis guilty of first degree murder with rape and kidnap special circumstances, rape, attempted murder, and two counts of kidnapping.

After the state Supreme Court upheld his sentence in 1988, Karis pursued habeas corpus relief, first before the state court and then before Karlton. He claimed to have been a victim of prosecutorial and juror misconduct in the guilt phase and ineffective assistance in the penalty phase.

His guilt phase claims included allegations that the prosecution manipulated a witness who testified that Karis had, four days before the murder, told her he would kill anyone who tried to send him back to prison. He also contended that a juror had asked for any books by Loftus at the local library and reported back that the library had no such books.

Penalty Phase

Karlton concluded that the juror’s inquiry was made during the penalty phase, not the guilt phase. And he rejected the other claims of guilt-phase error, concluding that if there was misconduct, it was harmless because the evidence of guilt was overwhelming.

The jurist did, however, order an evidentiary hearing on the ineffective-assistance claims.

Magistrate Judge John Moulds held the hearing, which lasted two weeks and dealt with whether Owen’s case in mitigation, which lasted less than an hour, should have included testimony not only on childhood abuse, but also on family history, mental illness, drug use, and the defendant’s military record.

Moulds, in a report that ran to more than 100 pages, concluded that only the abuse claim was viable. Omission of the other evidence was within the standards of reasonable competence at the time, was based on reasonable tactical choices, or was harmless, the magistrate said.

Karlton adopted Moulds’ findings and granted a new penalty trial based on Owen’s failure to establish that Karis had been regularly beaten, first by his father and later by his stepfather.

Hug, writing for the appellate panel, said the district judge was correct.

The appellate jurist noted that Owen had retained a mental health expert, who was prepared to testify about the abuse, but decided not to call him for fear that other parts of his testimony would depict the defendant as being a violent misogynist by nature.   

Not calling the expert was a reasonable tactical choice on defense counsel’s part, Hug conceded. But the defendant’s mother could have testified on the issue, the judge said.

Owen claimed that the mother, who was still on friendly terms with Karis’ stepfather at the time of the trial, although they were divorced, would not have given helpful testimony. But even if that was true, Hug said, Owen’s “failure to investigate the abuse through other family members and witnesses was error of constitutional magnitude.”

Kleinfeld argued in dissent that his colleagues were looking at the case with the benefit of hindsight.

Owen, he said, had presented a brief but “thoroughly investigated and prepared” defense. Focusing on the close bond between Karlis and his mother, the fact that Karis had saved his brother from drowning when they were children, and his record in prison, the judge said, was at least as effective as a drawn-out abuse defense that would have called even greater attention to evidence that the defendant was a “woman-hating repeat rapist,” Kleinfeld said.

The case is Karis v. Calderon, 98-99025.


Copyright 2002, Metropolitan News Company