Metropolitan News-Enterprise


Tuesday, November 5, 2002


Page 1


U.S. Supreme Court Overturns Ruling That Los Angeles Superior Court Judge Coerced Murder Verdict


By a MetNews Staff Writer


A Ninth U.S. Circuit Court of Appeals ruling granting a new trial to a convicted murderer on the ground that a Los Angeles Superior Court judge coerced the jury into reaching a verdict was overturned yesterday by the U.S. Supreme Court.

In a unanimous, per curiam opinion, the high court declared that the lower panel had misapplied the Antiterrorism and Effective Death Penalty Act of 1996, which severely limits the power of federal courts to grant writs of habeas corpus overturning state court judgments.

The ruling in Early v. Packer, 01-1765, was one of three yesterday in which the Ninth Circuit was reversed. The other two cases, including one in which the lower panel had awarded a new penalty trial to a Death Row inmate from Orange County, likewise were decided unanimously and resulted in unsigned opinions.

Under AEDPA, a federal court generally may grant habeas corpus relief only if the highest state court renders a decision that is “contrary to” clearly established federal law as determined by the Supreme Court, or which is “an unreasonable application” of clearly established federal law, or is based on “an unreasonable determination of the facts.”

In Packer, a divided Ninth Circuit panel—Judge Harry Pregerson wrote for himself and Judge Stephen Reinhardt—said Superior Court Judge Beauford Phelps gave one-sided instructions in response to a juror’s complaint that she was getting a “beating” from fellow jurors over her unwillingness to join the majority in a 1992 murder trial.

Phelps retired in 1996.

William Packer, who later married his appellate lawyer, Monica Knox, was tried before Phelps on 17 felony counts, including second degree murder and attempted murder. Those two charges were still to be resolved after jurors returned verdicts finding him guilty of two counts of attempted robbery, two counts of assault with a deadly weapon, and one count of assault with a firearm, while acquitting on 10 other charges.

One juror, Eva Radcliff, wrote the judge during deliberations, saying she had “health problems” but agreed to continue after meeting with Phelps and counsel. On the next day of deliberations, however, the jury foreman wrote to complain that Radcliff “does not appear to be able to understand the rules” concerning deliberation.

After Phelps read the note aloud in open court, in the presence of the jury, the foreman explained that the panel was “just having the same conversation over the same issue over and over again.” The judge cautioned the jury that each juror had a right to disagree with the others, but that no juror had “a right not to deliberate.”

Radcliff later wrote the judge, complaining that she had been exposed to a “public beating in the jury box” and to further “beatings” from her fellow jurors and wanted off the panel. The judge than had another meeting with Radcliff, over objections from defense counsel that the juror was being pressured into changing or vote or leaving the panel.

Radcliff told the judge her fellow jurors were upset that she wasn’t going along. Deliberations then continued, after the foreman assured Phelps that jurors were deliberating and that a verdict might be reached, before jurors were sent for the day. Jurors found Packer guilty of attempted murder the next day and of murder the day after that.

The Court of Appeal for this district affirmed, saying Phelps had properly urged Radcliff to give thought to her verdict and had not coerced her.

Pregerson said the trial judge should have realized that Radcliff felt intimidated as a result of having other jurors’ discomfort with her discussed in open court. The problem was exacerbated, the appellate jurist said, because Phelps told the jurors that they were required to deliberate, but “never reminded Radcliff or the other jurors of their obligation not to surrender their conscientiously held beliefs.”

Judge Barry Silverman argued in dissent that Packer shouldn’t be allowed to complain about Radcliff staying on the jury after defense counsel argued against her being excused.

The high court said yesterday that Pregerson had erroneously placed the burden on the state to show that the state courts had followed federal law. The Ninth Circuit panel, the justices insisted, “did not and could not” conclude that the Court of Appeal decision was contrary to U.S. Supreme Court precedent, as required by AEDPA, nor was it shown that the state court’s decision was unreasonable.

“Even if we agreed with the Ninth Circuit majority…that there was jury coercion here, it is at least reasonable to conclude that there was not, which means that the state court’s determination to that effect must stand.,” the high court declared.

In the death penalty case, Woodford v. Visciotti, 02-137, the justices overturned the panel’s conclusion that attorney Roger Agajanian failed to provide a competent penalty-phase defense for John Visciotti, convicted of the murder of Timothy Dykstra. The victim was lured, robbed, shot, and left at the scene in a remote area of the Anaheim Hills on Santiago Canyon Road.

Visciotti  was convicted of the murder of Dykstra and the attempted murder of another victim, who survived his wounds and identified Visciotti as the shooter. A co-defendant was tried separately and sentenced to life imprisonment without possibility of parole.

His death sentence was affirmed by a 6-1 decision of the California Supreme Court. The late Justice Stanley Mosk was the lone dissenter from the 1992 ruling

His ineffective-assistance claim was rejected in a 5-2 ruling denying habeas corpus relief in 1996. The state high court, while acknowledging deficiencies by Agajanian—who later resigned from the State Bar with unrelated disciplinary charges pending—said they did not affect the outcome.

Mosk and Justice Janice Rogers Brown dissented.

Visciotti’s federal petition, however, was granted by U.S. District Judge Manuel Real of the Central District of California, a decision that was affirmed by a Ninth Circuit panel made up of Pregerson and Judges A. Wallace Tashima and Marsha Berzon.

Pregerson, writing for the panel, said that the attorney settled on an incompetent penalty phase strategy—trying to persuade the jury that the Visciottis were a close, tight-knit family that would be devastated by the execution of one of its members.

 The strategy failed to meet the standard of competence, Pregerson said. Agajanian, he wrote, failed to investigate and discover mitigating evidence that would have produced a better defense, and should never have used a “family sympathy” argument that was not true and may have backfired by portraying the defendant in an unflattering manner.

But the nation’s highest court yesterday said the California Supreme Court had considered those arguments in a “lengthy and careful opinion” and reached the conclusion that there was no prejudice. While it is possible that a better defense would have resulted in a life-without-parole sentence, the justices wrote, it was not unreasonable for the California Supreme Court to conclude otherwise.

“The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable,” the high court declared. “It is not that here.”

In the third case, Immigration and Naturalization Service v. Ventura, 02-29, the justices overturned a ruling barring the deportation of a Guatemalan who said he was persecuted because of a family member’s position in the government.

The Supreme Court did not reject the Ninth Circuit’s conclusion that Fredy Orlando Ventura had been persecuted by the country’s leftist guerrilla movement as a result of imputed political opinion. Nor did it reject the panel’s holding, based on a 1997 State Department report, that conditions in the country had not necessarily improved to the point that he could go back in safety.

But the panel—Senior Judge David Thompson, Chief Judge Mary M. Schroeder, and Eighth Circuit Judge Donald Lay, sitting by designation—erred, the justices said, in blocking deportation rather than remanding to the Board of Immigration Appeals for reconsideration.

This will enable the INS, the Supreme Court explained, to present “further evidence of current circumstances in Guatemala—evidence that may prove enlightening given the five years that have elapsed since the [State Department] report was written.”


Copyright 2002, Metropolitan News Company