Metropolitan News-Enterprise


Tuesday, January 2, 2007


Page 1


Court to Rehear Case of Inmate Who Asked to End Death Appeal


By TINA BAY, Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday granted en banc rehearing in the case of Arizona death row inmate Robert Charles Comer, whose death sentence was overturned by a three-judge panel despite his request that the court end his appeal so he could be executed.

In a brief order, the court withdrew the three-judge panel’s Sept. 13 ruling that Comer’s state sentence violated his due process rights because he was sentenced while shackled, nearly naked, bleeding and exhausted.  Under Ninth Circuit rules, the case will be reheard by 15 judges.

The panel agreed with U.S. District Judge Roslyn O. Silver that Comer was competent to waive his habeas appeal right and that his waiver was made voluntarily.  However, it denied the state’s and Comer’s motions to dismiss his appeal, saying that upholding his waiver would violate the Eighth Amendment by permitting the state to execute Comer without any meaningful appellate review of his previously filed federal petition for writ of habeas corpus.

Panel Decision

Reviewing the merits of his federal habeas claims, the panel concluded that Comer’s treatment during sentencing shocked the conscience.

A spokesperson for the Arizona Attorney General’s Office told the MetNews

“We are pleased that the court has agreed to take the case and review it en banc and we hope that they will rule expeditiously on the pending appeal and uphold the District Court’s findings.”

None of Comer’s appellate counsel could be reached for comment.

In the now-withdrawn 2-1 decision, the court partially reversed a 1997 ruling by Silver denying Comer’s federal habeas petition as to the penalty phase of his 1988 state capital murder trial.

The panel 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.

State Trial

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.

In a 90-page opinion, Silver found Comer properly waived his appeal. 

‘Insurmountable Prejudice’

Reaching the merits of Comer’s appeal, the Ninth Circuit panel held his sentence offended the Constitution. 

Senior Judge Warren J. Ferguson wrote for the panel:

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

The judge noted Comer’s lack of clothing revealed his numerous tattoos.

“This presentation of Comer—shackled, beaten, and tattooed—certainly increased the perception of his dangerousness,” he said.  “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, the jurist maintained, 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,” Ferguson wrote. “Even inmates in solitary confinement have a dignitary interest in being clothed.”

Judge Harry Pregerson concurred in the ruling.

Concurring and dissenting in part, Judge Pamela Ann Rymer asserted 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 2007, Metropolitan News Company