Metropolitan News-Enterprise


Wednesday, November 8, 2006


Page 1


Ninth Circuit Reverses Death Sentence for Attorney Incompetence

Requested Instruction on Accomplice Testimony Prejudiced Client and Was ‘Quite in Error,’ Panel Says




The Ninth U.S. Circuit Court of Appeals yesterday overturned an Idaho murder conviction and death sentence, saying the defendant’s trial lawyer rendered ineffective assistance by requesting an instruction on accomplice testimony that was erroneous and in conflict with other instructions.

Judge Jay Bybee, writing for the Ninth U.S. Circuit Court of Appeals, said the errors were prejudicial because Mark Lankford’s guilt was proven only by circumstantial evidence and by the uncorroborated testimony of his accomplice—his brother—and a correctly instructed jury might not have found him guilty.

The attorney, Bybee pointed out in a footnote, was a part-time public defender whose only previous major felony trial was that of a defendant charged with cattle-rustling.

Lankford has been on Idaho’s death row for more than two decades for the 1983 killings of Marine Capt. Robert Bravence and his wife, Cheryl. Their van was found abandoned at a Los Angeles bus terminal, and hunters later discovered their remains hidden at a remote campground in very rural Idaho County.

Yesterday’s ruling requires the state to release or retry him within a reasonable time.

Lankford was tried in rural Idaho County. There were no eyewitnesses, but the defendant’s brother testified that Lankford beat the victims with a small club or nightstick.

Jury Instructions

Bryan Lankford, who said his brother stole the victims’ van on his own and that he did not participate in or encourage the killings, was tried separately and convicted. Bryan Lankford was originally sentenced to death, but the sentence was thrown out by the U.S. Supreme Court in Lankford v. Idaho (1991) 500 U.S. 110 on the ground that the trial judge was bound by the prosecution’s earlier announcement that it was not seeking the death penalty.

  Bryan Lankford, who is now serving a life sentence, gave a statement to police, and testified at his own trial in addition to his brothers. There were inconsistencies in the three versions.

Mark Langford’s attorney, Gregory FitzMaurice, requested three instructions regarding accomplice testimony. One informed jurors that such testimony may be considered “even though not corroborated by other evidence” and that they “should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that unsupported testimony beyond a reasonable doubt.”

The other instructions, however, provided that “a defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence” and that corroborative testimony was what which “if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the offense charged.”

Error Prejudicial

At a three-day federal habeas corpus hearing before Senior U.S. District William Fremming Nielsen of Washington, sitting by designation in the District of Idaho, FitzMaurice testified that in researching the applicable law, he was unable to find an Idaho model instruction on accomplice testimony, so he used a federal model instruction.

“In this,” Bybee wrote for the appellate panel, “FitzMaurice was dutiful, conscientious—and quite in error.” Idaho law, unlike federal law, does not permit a defendant to be convicted on “bare” accomplice testimony, the judge explained.

Bybee, disagreeing with the trial judge, rejected the contention that there was no prejudice because the other two instructions were correct. The appellate judge reasoned that if the jurors tried to reconcile the first two instructions, they would have come to the erroneous conclusion that the defendant could be convicted on the basis either of corroborated accomplice testimony, or on the basis of uncorroborated accomplice testimony that was believable beyond a reasonable doubt.

Given the evidence, the jurist wrote, “[i]t is hard to imagine a case in which such an instructional error could have caused more damage.”

Bybee explained that while there was overwhelming evidence that one or both of the brothers committed the murders, jurors could only have convicted Mark Lankford if they believed Bryan Lankford’s testimony, since there was no murder weapon or forensic testimony inculpating Mark Lankford to the exclusion of his brother.

“Bryan’s testimony was vital to the prosecution, and instruction 15 allowed the jury to convict Mark on Bryan’s word alone, in obvious violation of Idaho law,” Bybee wrote. “Moreover, Bryan had every incentive to lie: If Mark did not kill the Bravences, then Bryan must have done the deed. Additionally, Bryan thought he had a deal to avoid the death penalty in exchange for his testimony against his brother.”

The prejudice was aggravated, Bybee said, by FitzMaurice’s failure to present expert testimony as to whether the amount of force actually used—the victims were viciously bludgeoned—was consistent with Bryan Lankford’s testimony that a small club or nightstick was used. But since the case had to be retried anyway, Bybee explained, it was unnecessary for the panel to decide whether failing to present that testimony constituted a separate ground for a finding of ineffective assistance.

Judges Stephen Reinhardt and William Fletcher concurred in the opinion.

The case is Lankford v. Arave, 99-99015.


Copyright 2006, Metropolitan News Company