Friday, July 29, 2005
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S.C. Upholds Pro Per’s Death Sentence in Hollywood Poisoning
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday unanimously affirmed a Hollywood man’s death sentence for poisoning his neighbor to death, rejecting claims that James Nelson Blair should not have been allowed to represent himself, particularly in the penalty phase of the 1987 trial in which virtually no mitigating evidence was offered.
“[W]e adhere to the weight of state and federal authority that concludes, consistent with our own precedent, that the Sixth Amendment right to self-representation extends to the penalty phase, and that the Eighth Amendment poses no barrier to the self-represented defendant’s control of the presentation of mitigating evidence,” Chief Justice Ronald M. George wrote for the court.
Blair was already serving a prison term for poisoning Dorothy Green and Rhoda Miler when Green died of pneumonia, which doctors said was a direct result of ingesting a large dose of cyanide. Green succumbed following two years of hospitalization, after paramedics found her unconscious on the floor of her apartment in September 1984.
Miller testified that she and Green became ill after drinking gin that Blair had given the women, supposedly as a gift. Miller said that she drank a little bit of gin mixed with water, while Green drank a full glass straight up.
The paramedics took the gin bottle with them when they rushed the women to the hospital, later giving it to police. Tests revealed the presence of sodium cyanide in a significant amount, and an expert testified that Green would have died at the scene if she had not been resuscitated by the paramedics.
Victim Threatened
Prosecutors said Blair was upset with Green because she owed him money, and had threatened to “get” her, in addition to getting into a fight with the man she was living with. A search of the briefcase Blair was carrying at the time of his arrest produced an envelope with writing on it, in the form of a shopping or “to do” list, including the words “get cyanide,” as well as a piece of paper with the names, addresses, and phone numbers of chemical labs.
Blair waived his right to counsel but requested that Ray Newman, a Los Angeles attorney who was doing a good bit of capital defense work at the time, be appointed as “associate counsel.” Los Angeles Superior Court Judge Aurelio Munoz granted the request.
At a subsequent hearing, however, Judge Henry Patrick Nelson—who had presided over Blair’s earlier trial and briefly oversaw the pretrial proceedings in the new case—expressly found that Blair was representing himself and that Newman’s status was that of advisory counsel, after declaring that “I don’t see how a pro. per. can be chief counsel and . . . have a lawyer in effect representing him.”
Prior to trial, Newman informed the trial judge, Jerold Krieger—since deceased—that he would be unable to attend the entire trial because of scheduling conflicts. Krieger then appointed a second attorney, Lonzo Lucas—later a Los Angeles Superior Court commissioner but now retired—to serve as a second advisory lawyer.
Past Crimes
Jurors found Blair guilty of first degree murder with a murder-by-poison special circumstance. In the penalty phase, prosecutors presented evidence that Blair had been convicted of two robberies, as well as the attempted murders of Green and Miller, and called the defendant’s college chemistry teacher to testify that he had conducted an experiment involving cyanide in the class.
Krieger imposed the death sentence in accordance with the jury’s verdict, and the Supreme Court appointed San Rafael attorney David Nickerson to represent Blair on appeal.
Nickerson argued that Blair was incompetent to stand trial and/or waive counsel, citing the facts that he had been committed to Atascadero State Hospital for several months in 1972 and that Nelson had called him a “psychopath” when sentencing him in the earlier case.
But George said the fact that a defendant was committed a dozen years earlier does not, in and of itself, create a doubt as to his present competency.
Placed in context, the chief justice went on to say, the “psychopath” reference referred to someone with no compunction about hurting others, and did not suggest that the judge considered Blair to be “psychotic, out of touch with reality, or otherwise unable to understand the proceedings against him.”
George rejected the broader contention that the Supreme Court’s Faretta decision and its progeny, allowing virtually any defendant who is mentally competent to stand trial to waive counsel, should not be applied to the penalty phase of a capital case, particularly if the defendant is unwilling to present mitigating evidence that is available, such as the testimony of family members.
In making that argument, Nickerson cited decisions by some state high courts that require judges to create a record of mitigating evidence, such as through pre-sentence reports, if the defendant does not present such evidence at trial. He also cited a New Jersey Supreme Court ruling that defense counsel is obligated to present mitigating evidence even if the defendant objects.
Those rulings, George said, represent a minority view, as other state and federal appellate courts have held that a defendant may not only represent himself in the penalty phase and refuse to present mitigating evidence, but may argue in favor of the death penalty.
Deputy Attorney General Marc Nolan represented the prosecution on appeal.
The case is People v. Blair, 05 S.O.S. 3847.
Copyright 2005, Metropolitan News Company