Monday, March 20, 2006
Ninth Circuit Says State High Court Deprived Killer Of Due Process in Ruling on Special Circumstances
From Staff and Wire Service Reports
The California Supreme Court denied a murderer due process when it retroactively applied a new interpretation of the felony-murder special circumstance law to his case to uphold his death sentence, the Ninth U.S. Circuit Court of Appeals ruled Friday.
A three-judge panel of the court ruled unanimously that William Clark should not be put to death for murdering his therapist’s husband in an attempt to make her as miserable as he was.
In 1982, Clark threw gasoline and a lighted flare into his former therapist’s home, killing Ava Gawronski’s husband, David. Their baby girl was unharmed after she was rescued by a neighbor.
Ava Gawronski lost her fingers, nose and had other injuries but survived.
Clark confessed to the crime and claimed that his purpose in committing the arson was to drive the family out of the home so that he could kill the husband by shooting him with a shotgun, as Gawronski watched. He claimed he did not mean to injure her.
He said the crime was to cause her to suffer the same emotional pain that he claimed to have suffered when she abruptly discontinued counseling him.
On appeal, he argued that jurors should have been instructed, under the law applicable at the time, that the felony-murder special circumstance does not apply when a murder is not committed in order to carry out or advance the commission of the underlying crime, or to facilitate escape or avoid detection. Under those circumstances, according to the then-standard jury instruction based on People v. Green, 27 Cal. 3d 1 (1980), the underlying crime — in Clark’s case, arson — is incidental and does not qualify a defendant for the death penalty.
The state high court, in People v. Clark, 50 Cal. 3d 583 (1990), agreed with Clark that an instruction based on Green should have been given, but said the failure to do so was harmless.
In reaching that conclusion, Judge William A. Fletcher explained for the Ninth Circuit, the justices adopted a “new interpretation of Green and applied it retroactively to Clark’s case.” The result, he said, was that the very theory of the case Clark’s “experienced and skilled trial counsel” presented to demonstrate that the special circumstance was not applicable had the effect instead of showing he was eligible to be executed.
Fletcher pointed out that the standard Green jury instruction, CALJIC 8.81.17, has since been amended to include a comment reflecting the holding of Clark that concurrent intent to kill and commit an independent felony will support a felony-murder special circumstance. No ruling earlier than Clark made that development in the law foreseeable, he said.
“Thus,” he explained, “in holding that Clark’s arson was not ‘incidental’ to the murder of David Gawronski, the California Supreme Court dramatically altered the interpretation of the special circumstance statute that it had previously provided in Green. Under the California Supreme Court’s new interpretation of the felony-murder special circumstance statute, the Green instruction should have been given, but not for the reason advocated by Clark. Rather, according to the Court in Clark, the Green instruction should have been given to allow the jury to acquit on the special circumstance charge if it agreed with the prosecutor’s theory of the case — that is, if it agreed that the fires had been set in order to kill the entire family in the house. If those had been the facts, the Court wrote, the arson would not have qualified as a special circumstance. But the Court held that the failure to give the Green instruction had been harmless because there was ‘overwhelming’ evidence that Clark intended that the fires drive the family out of the house...Under the Court’s new interpretation of the statute, Clark’s purpose of driving the family out of the house now qualified as an ‘independent, albeit concurrent’ purpose.”
“That the California Supreme Court’s new interpretation of the arson-murder special circumstance statute was unforeseeable is demonstrated by the deeply ironic result it produced. Clark’s trial strategy had been to prove precisely what the Court now held was a special circumstance making him eligible for the death penalty. The prosecutor had tried to show that Clark had tried to kill the entire family, including David Gawronski, in the house by means of the fires. By contrast, Clark’s experienced and skilled trial counsel, Charles English, had tried to show that Clark set the fires in order to drive the family out of the house. Now, under the Court’s new interpretation of Green, what Clark had been at pains to show at trial was precisely what defeated his appeal.”
Judges Dorothy W. Nelson and Raymond C. Fisher concurred.
The case is Clark v. Brown, 02-99007.
Copyright 2006, Metropolitan News Company