Metropolitan News-Enterprise


Friday, March 16, 2007


Page 1


Court Grants Death Row Inmate’s Request to End Appeal


By TINA BAY, Staff Writer


An en banc panel of the Ninth U.S. Circuit Court of Appeals yesterday granted Arizona death row inmate Robert Charles Comer’s request that his federal habeas corpus proceedings be dismissed.

Clearing the way for Comer’s execution, the court in a per curiam opinion rejected his lawyers’ argument that his decision to waive further proceedings was involuntary, due to prison deprivations and harsh prison conditions.

The decision replaces a Sept. 13 opinion by a three-judge panel, which agreed with U.S District Judge Roslyn O. Silver’s finding that Comer was competent to waive legal review of his conviction, but found that the circumstances of his sentencing violated due process.

Writing for the court in the now-withdrawn opinion, Senior Judge Warren Ferguson said Comer’s death sentence was invalid because it was imposed while the defendant was nearly naked, bleeding, shackled, and exhausted.

Comer was sentenced to death in Arizona in 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 waived his presence at his 1988 trial, which lasted seven days and resulted in a jury finding him guilty on all counts. He also waived his presence at the sentencing hearing, where the parties submitted evidence and argument as to whether Comer should be sentenced to death or to life in prison.

At the conclusion of the hearing, Arizona law required that Comer be present when his sentence was pronounced. The inmate refused to attend the pronouncement, however, barricading his cell door with a mattress and threatening jail staff with a 10-inch shank. Jail correctional officers sprayed Comer with water from a fire hose with a 150-pound water pressure capacity in order to disarm him and extract him from his cell.

After being further resisted, the officers ultimately disarmed Comer and brought him to the sentencing courtroom shackled to a wheelchair and nearly naked, covered only by a blanket that was draped over his lap. His body bore visible abrasions and his head, bleeding from a wound, was drooped toward his shoulder.

The trial judge asked a prison psychiatrist whether Comer was conscious and aware, and the doctor opined that he was. The judge told Comer Arizona law required him to appear and engaged in a dialogue with Comer regarding his custody and sentence. 

After Comer responded to various questions and said he had nothing he wished to say before the pronouncement of his sentence, the judge 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.

Comer filed a federal petition for writ of habeas corpus with the U.S. District Court of Arizona, which in 1997 ultimately denied him relief. After filing an appeal in the Ninth Circuit, Comer changed his mind and 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 and remanded for Silver to determine whether Comer was competent to waive further proceedings and had chosen to do so voluntarily.

In reaching the conclusion that the inmate had properly waived his appeal, Silver considered the opinion of an independent psychiatric expert who interviewed Comer for numerous hours and toured the prison. In his district court testimony, Comer agreed with the doctor’s opinion that prison conditions were not the most significant factor motivating his decision to waive further proceedings.

The Ninth Circuit’s Sept. 13 decision did not dispute the findings Silver detailed in her 90-page opinion, but denied Comer’s motion to dismiss based on what Ferguson—joined by Judge Harry Pregerson—described as a “prejudicial and dehumanizing” sentencing hearing. Judge Pamela Ann Rymer had partially dissented, asserting the panel had no authority to reach the merits of Comer’s petition and should only have decided the competency and voluntariness issues.

The en banc panel yesterday echoed Rymer’s position:

 “As there is no dispute regarding Comer’s competency, the District Court did not err in accepting Comer’s testimony that prison conditions are not the major factor in his decision to waive further proceedings nor are they so harsh as to force him to abandon a natural desire to live,” the majority held.

Judge Richard A. Paez concurred separately “to emphasize that, as part and parcel of the evaluation of whether a petitioner’s waiver is knowing and voluntary, the district court must ensure that the petitioner has an understanding of the viability of his legal claims, particularly if they have some likelihood of success.”

In a dissent book-ended with a photo of Comer at the pronouncement of his sentence, Pregerson quoted the whole of Ferguson’s Sept. 13 majority opinion, reiterated its reasoning, and concluded tersely:

“Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson’s opinion only requires that the sentence of death be pronounced to an understanding human, not to a discarded piece of flesh.”

Tucson, Ariz. attorney Julie S. Hall told the MetNews yesterday that counsel were under a court order not to speak to the media about the case.

In addition to Hall, Comer was represented on appeal by Denise I. Young, and Phoenix-based special counsel Michael D. Kimerer and Holly R. Gieszl.

Assistant Attorney General John Pressley Todd of Phoenix, represented the government.

The case is Comer v. Schriro, 98-99003.


Copyright 2007, Metropolitan News Company