Metropolitan News-Enterprise


Thursday, September 14, 2006


Page 4


Court:  Sentencing Man While He Was Nearly Naked, Bleeding, Shackled Violated Due Process Rights


By a MetNews Staff Writer


Sentencing a defendant while he was shackled, nearly naked, bleeding and exhausted violated the defendant’s constitutional due process rights, the Ninth U.S Circuit Court of Appeals ruled yesterday.

In a 2-1 decision, the court partially reversed a 1997 ruling by U.S. District Judge Roslyn O. Silver of the District of Arizona, denying Robert Charles Comer’s federal petition for writ of habeas corpus as to the penalty phase of his 1988 state capital murder trial.

The court affirmed the denial of Comer’s habeas petition as to his guilt-phase claims of unconstitutionality, but held there was a reasonable doubt as to whether Comer would have been sentenced to death had his due process rights not been violated at the sentencing hearing.

Comer was sentenced to death in Arizona state court after being convicted on charges of first degree murder, armed robbery, kidnapping, aggravated assault, sexual assault, and sexual abuse. The charges stemmed from acts he committed against three campers at a campground in Apache Lake, Ariz. in February 1987.

Comer was absent from the courtroom throughout his seven-day trial. He appeared in court for the first time on the day of his sentencing, showing up at the sentencing hearing shackled to a wheelchair and nearly naked, with only a blanket draped over his genitals. With visible abrasions on his body, his head was bloodied with wounds and was drooped toward his shoulder.

His condition notwithstanding, the trial judge asked both the court deputy and a prison psychiatrist whether Comer was conscious and then sentenced him to death on the murder charge, and to aggravated, consecutive terms of imprisonment for the other offenses.

The Arizona Supreme Court affirmed the convictions and sentence and later denied review of his state court petition for post-conviction relief.

After his subsequent federal habeas corpus petition was denied, Comer filed an appeal in the Ninth Circuit and then wrote letters to the Arizona state attorney general stating he no longer wanted his appeal to be heard and expressing his desire to die. The Ninth Circuit delayed oral argument on the merits of Comer’s petition until after the district court determined whether he was competent to terminate representation by counsel and waive legal review.

Silver found in a 90-page opinion that Comer was competent to waive his habeas appeal right and that his waiver was made voluntarily. The appeal proceeded.

Writing for the Ninth Circuit, Senior Judge Warren J. Ferguson said that Comer’s treatment during sentencing shocked the conscience.

“We cannot conceive of any reasonable justification . . . for escorting a naked and bleeding defendant into a courtroom for a capital sentencing hearing,” he said.

Noting that his lack of clothing revealed his numerous tattoos, the judge wrote:

“This presentation of Comer—shackled, beaten, and tattooed—certainly increased the perception of his dangerousness. If Comer had been sentenced before a jury, these circumstances would have given rise to insurmountable prejudice.”

Not only were the circumstances prejudicial and dehumanizing, Ferguson said, but they were a severe affront to the dignity and decorum of the judicial proceedings.

 “We have never before read of a man being sentenced to death, or even presented to a court, under such circumstances,” he wrote. “Even inmates in solitary confinement have a dignitary interest in being clothed.”

Concurring and dissenting in part, Judge Pamela Ann Rymer said that the appellate panel had no right to reach the merits of Comer’s petition.

“We need to—and may only—decide one question: whether death row inmate Robert Comer is competent to withdraw his appeal from denial of his petition for writ of habeas corpus and has done so knowingly and voluntarily,” Rymer said, calling the reversal of Silver’s ruling as to Comer’s petition a “raw imposition of judicial power.”

The case is Comer v. Schriro, No. 98-99003.


Copyright 2006, Metropolitan News Company