Metropolitan News-Enterprise


Tuesday, October 21, 2003


Page 3


En Banc Ninth Circuit Again Orders New Death Penalty Trial for Killer


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has ruled, in a second en banc decision, that one of Orange County’s longest-serving Death Row inmates is entitled to a new penalty trial.

William Charles Payton was denied his constitutional right to have all relevant mitigating evidence considered, the court said in a 6-5 ruling, because a prosecutor told jurors they could not consider his mitigating evidence and the trial judge did not correct him.

The 6-5 vote was the same as in August of last year, when the same judges overturned the ruling of a three-judge panel that the comments by Deputy District Attorney Michael Jacobs did not affect Payton’s sentence.

The case was sent back to the en banc panel by the Supreme Court for reconsideration under the strict standards for granting of habeas corpus relief imposed by the Antiterrorism and Effective Death Penalty Act.

The Ninth Circuit had held that AEDPA did not apply to petitioners, such as Payton, who requested appointment of habeas counsel but did not file a petition prior to AEDPA’s effective date. The U.S. Supreme Court subsequently ruled otherwise in another case.

The en banc majority, however, concluded that the California Supreme Court’s decision to affirm Payton’s sentence was an “unreasonable application of controlling federal law” as set forth in U.S. Supreme Court rulings, so Payton is entitled to relief, even under the stricter standard.

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 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.

Justice Joyce L. Kennard and the late Justice Stanley Mosk dissented as to the death sentence.

Judge Richard Paez, writing yesterday for the Ninth Circuit, said the state high court was wrong. The process, Paez wrote, was rendered “fundamentally unfair” when the trial judge not only overruled a defense objection to Jacobs’ remarks, but later rejected 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.”

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

But Paez distinguished Boyde, saying it dealt only with pre-crime mitigating evidence, which jurors would have readily understood to be covered by the old instruction. “Boyde did not address the question presented here—whether, on its face, the unadorned factor (k) instruction is unconstitutionally ambiguous as applied to post-crime evidence.”

Rather than affirming on the basis of +Boyde,+ Paez said, the state high court should have followed 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, and Thomas G. Nelson and Senior Judge Ferdinand F. Fernandez, dissented.

Tallman accused his colleagues of ignoring the AEDPA standard.

Noting that seven Ninth Circuit judges—the five dissenters plus two members of the three-judge panel—disagreed with the en banc majority, Tallman wrote:

 “Today, six judges of this court announce that the legal conclusion reached by seven of their colleagues (plus five justices of the California Supreme Court) is not only wrong, but objectively unreasonable in light of clearly established federal law.”

He went on to say:

“The California Supreme Court’s application of the Boyde decision was not only reasonable but correct.”

The majority, he added, “hastily jettisons” the harmless-error rule.

Payton, he wrote, was such a “vile human being,” and the crimes for which he was sentenced so horrible, the jury was not likely to have found his “fortuitous epiphany” to be sufficiently mitigating even if specifically told to consider it.

Payton was represented on appeal by 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 2003, Metropolitan News Company