Metropolitan News-Enterprise


Wednesday, March 23, 2005


Page 1


U.S. High Court Reinstates Death Sentence for Orange County Man


By KENNETH OFGANG, Staff Writer/Appellate Courts


An Orange County killer who has spent 23 years on Death Row and claimed to have undergone a religious conversion while awaiting trial is not entitled to a new penalty trial based on remarks made to the jury by the prosecutor, the U.S. Supreme Court ruled yesterday.

In a 5-3 ruling, the justices said the Ninth U.S. Circuit Court of Appeals was in error when it held en banc that William Charles Payton was denied his constitutional right to have all relevant mitigating evidence considered.

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.

At issue before the high court yesterday was a comment by Deputy District Attorney Michael Jacobs suggesting that jurors were not required to consider Payton’s conduct after the murder, including his religious experience and good works in jail, as a mitigating factor in the penalty phase.

Old Instruction

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 California Supreme Court, in a 1992 decision, said Jacobs’ comment was improper, because the law allows jurors to consider any evidence of the defendant’s character as mitigating.

But the state court found Jacobs’ remarks harmless, reasoning in a 5-2 decision that the jurors, having heard Payton’s evidence, could not have been misled into thinking they were not supposed to consider it. Even if they were misled, the court added, the error was harmless beyond a reasonable doubt because the aggravating factors were overwhelming.

Justice Joyce L. Kennard and Justice Stanley Mosk, since deceased, were the dissenters.

The Ninth Circuit, in a 6-5 ruling, disagreed, saying the capital sentencing process was rendered “fundamentally unfair” when the trial judge not only overruled the defense objection to Jacobs’ remarks, but later rejected a defense request for a specific instruction that would have cured the error.

But Justice Anthony Kennedy, writing yesterday for the Supreme Court, said the Ninth Circuit should have deferred to the California Supreme Court’s judgment under the strict standards imposed by the Antiterrorism and Effective Death Penalty Act.

Not Unreasonable

The state court’s ruling was not an “unreasonable application of controlling federal law” as set forth in prior Supreme Court rulings, Kennedy said. He noted that the court had upheld the old instruction as constitutionally adequate in Boyde v. California, 494 U.S. 370 (1990).

“The California Supreme Court’s conclusion that the jury was not reasonably likely to have accepted the prosecutor’s narrow view of factor (k) was an application of Boyde to similar but not identical facts,” Kennedy wrote. “Even on the assumption that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review.”

Kennedy was joined by Justices Sandra Day O’Connor, Antonin Scalia, Clarence Thomas, and Stephen Breyer. Chief Justice William H. Rehnquist missed the argument due to illness and did not participate in the decision.

Justice David Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, dissented.

Souter argued that the trial judge “utterly failed to correct [Jabobs’] repeated misstatements or in any other way to honor his duty to give the jury an accurate definition of legitimate mitigation” and that jurors probably ignored the defense evidence because of it.

“[I}n concluding otherwise, the Supreme Court of California unreasonably applied settled law, with substantially injurious effect,” the dissenting justice wrote.

The case is Brown v. Payton, 03-1039.


Copyright 2005, Metropolitan News Company