Metropolitan News-Enterprise


Monday, December 11, 2009


Page 1


S.C. Reverses Death Sentence for Jail Inmate’s Killing

Says Defendant Should Have Been Allowed to Defend Himself




A man convicted of killing a fellow Los Angeles County Jail inmate is entitled to a new trial because the judge wrongfully prevented him from representing himself, the California Supreme Court ruled yesterday.

Raymond Oscar Butler was denied his Sixth Amendment right to counsel, under the self-representation standard set forth in Faretta v. California (1975) 422 U.S. 806, Justice Carol Corrigan wrote in a 5-2 decision.

In June, the high court unanimously affirmed Butler’s conviction and death sentence in a separate case, People v. Butler (2009) 46 Cal.4th 847. The sentence in that case was for the murders of two college students from Japan during a 1994 carjacking in the parking lot of a San Pedro supermarket.

In 1995, while awaiting trial for those murders—of which he was convicted the following year—Butler was charged with the first degree murder of Tyrone Flemming.

Flemming was beaten and stabbed multiple times as he and other inmates were being moved to showers the morning of March 26. Witnesses said that Butler started the fight, then Paul Gornick began stabbing Flemming, and that Butler then took the same knife and stabbed Flemming several more times.

Butler admitted being involved in the fight, which stemmed from an ongoing feud between Gornick and Flemming over an allegedly stolen address book and supposed threats by Flemming against Gornick’s family. Butler said Gornick was planning to attack Flemming and had used a fabricated handcuff key to keep his stabbing hand free.

Butler said he only participated in the fight because he would have been seen as a coward otherwise, and that he had not stabbed anyone.

Although he was represented by counsel at his first trial, he filed a handwritten motion asserting his “unconditional constitutional right to represent himself without counsel.” The prosecutor said that Butler might be seeking pro per status in order to gain additional jail privileges, but acknowledged that he had a right to defend himself.

The judge hearing the case at the time granted the motion.

In January 1996, however, citing the Flemming stabbing and other disciplinary violations, including three incidents of possessing razor blades, the county moved to terminate Butler’s use of the law library, saying he was too dangerous to be allowed contact with other inmates and staff. The judge agreed, saying Butler could continue to defend himself through access to legal forms and supplies, a legal runner, and advisory counsel.

In October 1996, subsequent to his conviction in the first case, Butler appeared before Los Angeles Superior Court Judge J.D. Smith, who was newly assigned to the Flemming murder case. The judge expressed doubt that Butler could continue to defend himself, saying it was “pretty obvious with this type of situation that pro per status is probably going to be revoked,” but put the matter over for about six weeks.

At the next hearing, after the prosecutor recounted all of the incidents involving Butler at the jail, including a recent one in which a knife was found in his rectum, revoked his pro per status and appointed his advisory/standby counsel to represent him in the balance of the proceeding.

Butler subsequently sought, in written papers and at court hearings, to regain his right of self-representation, and in September 1997, the judge agreed. But a month later, at a hearing at which Butler complained he had not received all of his discovery material, Smith again revoked his pro per status.

The defendant’s standby lawyer explained that while Butler had received all of the discovery relating to the stabbing, which was a major part of the penalty phase in the previous trial, jail personnel had insisted that the rest of the material was too voluminous to be given to Butler at one time.

Smith responded that this illustrated why the defendant could not represent himself:

“It is not unique to your client. This is the pro per problem. You have a pro per that is in for another case; and the jail is a jail, it is not a law library. They restrict what you can do there. That is why it just doesn’t make sense to do that. In any event, I will just put you back on the case. You have had some time to work on at least the guilt phase. You can take a look at that and if we need to . . . we will take a short delay to look at the penalty phase. We will not be starting that right away.”

Jury selection began a week later. Butler was convicted of first degree murder and sentenced to death.

Corrigan, however, said the court was compelled by Faretta and its progency to reverse.

While pro per status may be denied or terminated due to “serious and obstructionist misconduct,” failure to make a timely and unequivocal request for self-representation, acquiescence in appointment of counsel, or severe mental illness, Corrigan noted, the trial judge based his order solely on the restrictive conditions of the defendant’s confinement.

“Restrictions on pro. per. privileges in custody are not unusual,” the justice wrote. “They have never been deemed a justification for depriving inmates of the right to represent themselves.”

Corrigan further noted that the restrictions did not preclude Butler from representing himself, given that he had advisory counsel and access to legal documents and discovery materials.

 “It is established that the effectiveness of a self-represented defendant’s preparation is ordinarily irrelevant,” Corrigan wrote.

“Defendants untrained in the law may well provide themselves with inept representation,” the justice added. “But Faretta gives them the right to make a thoroughly disadvantageous decision to act as their own counsel, so long as they are fully advised and cognizant of the risks and consequences of their choice.”

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar and Carlos Moreno concurred.

Justice Ming Chin, joined by Justice Marvin Baxter, dissented. Chin argued that the trial judge acted properly “under the extreme circumstances the case presents.”

He emphasized that the restrictive conditions of Butler’s confinement were the result of the defendant’s own actions, as proven during the penalty phase of the first trial.

He cited Indiana v. Edwards (2008) 128 S.Ct. 2379, in which the court held that a defendant who was severely mentally ill, but competent to stand trial, could be denied the right to represent himself.

Chin acknowledged that the case was not directly on point, but seized on the high court’s statement that “self-representation at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel.”

The dissenting jurist argued that the court “should be similarly unconcerned with affirming the dignity of a defendant who is already under a sentence of death, and who is personally responsible for the actions that made him such a security risk that he could not effectively defend himself.”

Corrigan, who said in a footnote that counsel for both sides had agreed that Edwards was irrelevant to Butler’s situation, wrote that while the U.S. Supreme Court might be “well advised” to reconsider its precedent, “this court is not empowered to narrow the established scope of a federal constitutional right.”

The case was argued by Deputy State Public Defender Jessica K. McGuire for the defendant and Deputy Attorney General Jason C. Tran for the state.

The case is People v. Butler, 09 S.O.S. 7001.


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