Metropolitan News-Enterprise


Monday, May 5, 2008


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Ninth Circuit Reinstates Death Sentence in Tarzana Burglary-Murder

Better Representation Would Not Have Resulted in Lesser Penalty, Panel Says




The Ninth U.S. Circuit Court of Appeals Friday reinstated the death sentence imposed on a Van Nuys resident for killing two men during the botched burglary of a Tarzana home in 1982.

A divided panel ruled that while Scott Lynn Pinholster’s trial counsel may have conducted an inadequate investigation and failed to present available mitigating evidence in the penalty phase of the 1984 trial, a better defense would probably not have resulted in a lesser sentence.

U.S. District Judge Gary L. Taylor of the Central District of California ruled in 2003 that Pinholster had received ineffective assistance from his appointed trial lawyers, Harry Brainard and Wilbur Dettmar. Brainard was disbarred in 1990 and Dettmar is now deceased.

Dual Slaying

Robert Beckett, 29, a Canoga Park resident and medical technician, and Thomas Johnson, 25, a student at Pierce College from Tarzana, were killed during the burglary at Michael Kumar’s residence. Kumar, who was convicted of dealing marijuana on several occasions, both before and after the killings—one of the cases was prosecuted in the early 1990s by then-Deputy District Attorney Stephen Cooley—was allegedly on a buying trip to Northern California when Pinholster and two companions came upon Kumar’s friends during the burglary.

The two were stabbed to death, and jurors found that Pinholster personally used a knife in the commission of the crimes.

They found him guilty on two counts of first degree murder with multiple-murder, robbery-murder, and burglary-murder special circumstances. The jury returned a death penalty verdict after a penalty phase that featured testimony that Pinholster had a long history of criminal violence, including a kidnap conviction, several attacks on police officers and jailers, a domestic violence incident in which he broke his wife’s jaw, and a threat to kill the prosecution’s star witness.

The witness, Art Corona, was an accomplice who turned himself in two weeks after the killings. The defendant’s other accomplice, David Paul Brown, was sentenced to life imprisonment without possibility of parole.

The California Supreme Court affirmed Pinholster’s death sentence in 1992.

Mitigation Claims Debatable

Judge Richard Tallman, writing for the Ninth Circuit, said there was no reasonable probability that Pinholster’s trial lawyers could have saved him from the death penalty, because his mitigation claims—that his childhood was marred by serious abuse and that he had a history of mental illness—were debatable and would not have persuaded the jury to overlook “the damage Pinholster did to himself when he took the stand in the guilt phase and testified to an unrepentant life of violent crime.”

Tallman added that the defendant “was openly disrespectful of the deputy prosecutor and ignored the seriousness of his underlying murders” and “was either laughing or smirking during numerous stages of the deputy prosecutor’s cross-examination.”

The judge also rejected the argument that counsel was ineffective in advising Pinholster to testify. The record, Tallman explained, shows that there was overwhelming evidence that Pinholster had been in the house on the day of the murders and that he was eager to testify that he had broken into the house and stolen some marijuana hours before the killings and did not confront the victims or ransack the premises.

Chief Judge Alex Kozinski concurred separately, saying he would reverse the district judge on an alternative ground, “that petitioner’s counsel weren’t deficient, because they made a rational decision to pursue what was essentially a ‘pity’ mitigation case, rather than try to make out a case of mental defect.”

Judge Raymond Fisher dissented. He argued that Taylor’s decision to grant relief from the death sentence was consistent with U.S. Supreme Court decisions.

Fisher also contended that defense counsel should have advised Pinholster not to testify, rather than to offer a “highly suspect” alibi while opening himself up to damaging cross-examination. But he agreed that there was no prejudice with respect to the guilt phase, since Pinholster would have been convicted whether he took the stand or not.

Attorneys on appeal were Deputy Attorney General Kristofer Jorstad for the prosecution and Federal Public Defender Sean Kennedy for Pinholster.

The case is Pinholster v. Ayers, 03-99003.


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