Metropolitan News-Enterprise


Thursday, December 10, 2009


Page 3


Court Tosses Death Sentence in Tarzana Double Murder


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday threw out the death sentence of a former Van Nuys resident who killed two men with a knife during the botched burglary of a Tarzana home in 1982.

The court, sitting en banc, voted 8-3 to affirm a district court’s ruling granting Scott Lynn Pinholster habeas relief due to ineffective assistance of counsel at the penalty phase of his 1984 trial and remanded for a new penalty trial.

U.S. District Judge Gary L. Taylor of the Central District of California ruled in 2003 that Pinholster received ineffective assistance from appointed trial lawyers Harry Brainard and Wilbur Dettmar, both now deceased, but a divided Ninth Circuit panel reinstated the death penalty in July 2008.

 The panel ruled that while Dettmar and Brainard might have conducted an inadequate investigation and failed to present available mitigating evidence, a better defense would probably not have resulted in a lesser sentence.

Judge Milan D. Smith Jr., however, wrote yesterday that the California Supreme Court was objectively unreasonable when it concluded that not a single juror would have voted against the death penalty if counsel had investigated and introduced readily available mitigating evidence other than “inaccurate, damaging” testimony from Pinholster’s mother.

Smith said Pinholster suffered prejudice because the harmful effect of aggravating evidence could have been significantly mitigated by evidence of traumatic childhood head injuries, abuse and deprivation; his family’s criminal and mental history; and a history of substance abuse.

Chief Judge Alex Kozinski dissented, joined by Judges Pamela Ann Rymer and Andrew J. Kleinfeld, and predicted that the U.S. Supreme Court would reinstate Pinholster’s death sentence.

A jury convicted Pinholster of the double murder of Robert Beckett, 29, a Canoga Park resident and medical technician, and Thomas Johnson, 25, a student at Pierce College from Tarzana, 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 case having been prosecuted in the early 1990s by then-Deputy District Attorney Steve 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 also 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. After exhausting state remedies, Pinholster sought a writ of habeas corpus in federal district court alleging ineffective assistance of counsel at both the guilt and penalty phases of his trial.

Taylor granted habeas relief with respect to the penalty phase, but denied Pinholster’s claim as to guilt phase. The latter decision has never been overturned.

On appeal to the Ninth Circuit panel which reinstated the death sentence, Judge Raymond Fisher dissented from the majority’s conclusion, writing that Taylor’s decision to grant relief from the death sentence was consistent with U.S. Supreme Court decisions.

But Judge Richard Tallman, joined by Kozinski, who concurred separately, said in 2008 that there was no reasonable probability Pinholster’s trial lawyers could have saved him from the death penalty because his mitigation claims 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.”

Kozinski wrote then that counsel were not 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.”

He said yesterday that the majority improperly relied on evidence never presented to the state courts, “retrospectively” applied a standard for performance that bore “no relationship to that prevailing in California at the time” of trial, and “perhaps worst of all,” accorded “no deference to the California Supreme Court’s superior expertise in determining what constitutes competent representation.”

Judges Harry Pregerson, Stephen Reinhardt, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Marsha S. Berzon and Jay S. Bybee joined Smith in his opinion.

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


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