Metropolitan News-Enterprise


Friday, August 2, 2002


Page 1


Panel Orders New Death Penalty Trial, Cites Prosecutor’s Remarks


By KENNETH OFGANG, Staff Writer/Appellate Courts


One of Orange County’s longest-serving Death Row inmates is entitled to a new penalty trial because a prosecutor told jurors they could not consider his mitigating evidence and the trial judge did not correct him, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a 6-5 limited en banc decision, the court agreed with U.S. District Judge Manuel Real of the Central District of California that William Charles Payton was denied his constitutional right to have all relevant mitigating evidence considered by the jury that imposed the death penalty.

The en banc panel overruled a three-judge panel, which held that the comments by Deputy District Attorney Michael Jacobs could not possibly have affected William Charles Payton’s sentence.

Payton was sentenced to die in 1982 for a 1980 rape-murder, accompanied by two assaults, in Garden Grove. The victims had been repeatedly stabbed, and investigators called the crime scene one of the bloodiest they had ever seen.

The California Supreme Court affirmed.

It agreed that Jacobs had improperly told jurors that the law did not allow them to consider Payton’s mitigating evidence—that he had undergone a serious religious conversion and had done good works in jail. But the judge’s error in allowing the comment was harmless beyond a reasonable doubt because the jury had been properly instructed, in general terms, to consider all mitigating evidence, the Justices said in a 5-2 decision.

‘Unfair’ Process

But Judge Richard Paez, writing yesterday for the Ninth Circuit, held that the process was rendered “fundamentally unfair” when the trial judge not only overruled a defense objection to Jacobs’ remarks, but later overruled a defense request for a specific instruction that would have cured the error.

Jurors were given what was then CALJIC 8.84.1, quoting Penal Code Sec. 190.3(k), the “catch-all” provision on mitigating evidence. Jurors were told that, in addition to the specific mitigating factors set out in the statute, they could consider any circumstance “which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

Payton’s lawyers unsuccessfully asked that the words “including evidence of the defendant’s character, background, history, mental condition and physical condition” be added to the standard instruction.

A year later, the state Supreme Court suggested in another case that CALJIC 8.84.1 was too ambiguous with respect to factor (k). The current instruction, CALJIC 8.85(k), advises jurors they may consider “any sympathetic or other aspect of the defendant’s character or record [that the defendant offers] as a basis for a sentence less than death, whether or not related to the offense for which he is on trial.”

Adequate Instruction

The U.S. Supreme Court, however, upheld the old instruction as constitutionally adequate in Boyde v. California, 494 U.S. 370 (1990).

But Paez distinguished Boyde yesterday, saying it dealt only with pre-crime mitigating evidence, which jurors would have readily understood to be covered by the old instruction. That instruction, Paez said, “does not encompass post-crime evidence” and thus violates an earlier Supreme Court decision holding that juries must be permitted to consider post-crime good behavior as a mitigating factor.

Paez was joined by Chief Judge Mary M. Schroeder and Judges Harry Pregerson, A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon.

Judge Richard C. Tallman, joined by Judges Alex Kozinski, Stephen S. Trott, Ferdinand F. Fernandez and Thomas G. Nelson, dissented.

Tallman agreed with prosecutors that Payton’s crimes were so horrible, no reasonable juror would have found the mitigating evidence sufficient even if they were specifically told they could consider it.

“I fear that as we wrestle with the fate of a defendant facing the ultimate penalty of death, we have elevated form over substance and cloaked our habeas decision in the mantle of a federal constitutional requirement when the Supreme Court told us in Boyde the Constitution contemplates no such thing,” he said. “In the process, one wonders whether our court has lost its conscience and no longer listens to the silent screams of the victims, who are also entitled to justice; nor considers the impact of its decisions on the safety of our communities, which are equally entitled to protection from recidivists like William Charles Payton.”

Payton was represented on appeal by Santa Monica attorneys Dean Gits and Rosalie Rakoff. Deputy attorneys general Nancy Palmieri and Esteban Hernandez presented the case for the state.

The case is Payton v. Woodford, 00-99000.


Copyright 2002, Metropolitan News Company