Metropolitan News-Enterprise


Monday, October 5, 2009


Page 3


Ninth Circuit Panels Unanimously Overturn Two Death Sentences


By SHERRI M. OKAMOTO, Staff Writer


Two three-judge panels of the Ninth U.S. Circuit Court of Appeals on Friday unanimously granted habeas corpus petitions in two unrelated death penalty cases.

U.S. District Judge Susan R. Bolton of the District of Arizona denied the petitions of Laurence Libberton and Danny Jones, but the appellate court found that both men had been denied effective assistance of counsel during the penalty phase of their trials.

Libberton was convicted of the 1981 murder of Juan Maya, whose beaten body was thrown down a mine shaft. Jones was convicted of bludgeoning Richard Weaver to death with a baseball bat and killing Weaver’s 7-year old daughter in 1992.

At the penalty phase of Libberton’s trial, defense counsel called only two witnesses: a friend of Libberton’s mother who testified she had not seen Libberton in 10 years, and the mother of an ex-girlfriend who indicated that her last contact with Libberton was “a long time” prior to trial.

Ineffective Assistance Claim

The Arizona Supreme Court affirmed Libberton’s conviction and death sentence and he unsuccessfully filed a number of state post-conviction petitions asserting that his trial counsel had been ineffective before seeking federal habeas relief in December 1986.

He stipulated to dismissal without prejudice in order to exhaust a potential state claim, and upon returning to state court presented an affidavit from one of the admitted participants in the Maya killing who was the prosecution’s key witness at trial.

The affidavit fingered a third man as the leader of the assault and murder but the state court declined to consider its contents, ruling that the information contained within could have been discovered through the exercise of due diligence in Libberton’s previous petitions for post-conviction relief.

The Arizona Supreme Court denied review, and after Libberton again returned to federal court, Judge William A. Fletcher wrote on appeal that Libberton’s federal petition for habeas corpus was governed by the Anti-Terrorism and Effective Death Penalty Act since it was filed after the act’s effective date and was not an amendment of his earlier federal petition.

Noting that Libberton and the state had had submitted a stipulation and a proposed order in the earlier federal proceeding, which the district judge adopted, Fletcher wrote that “[w]hile the order did refer to any later petition as ‘amended,’ the order was clearly titled a dismissal.”

Additional Claims Rejected

Joined by Judges Richard R. Clifton and Milan D. Smith Jr., Fletcher also rejected Libberton’s arguments based on an asserted undisclosed deal with a prosecution witness and the sentencing factors applied during the penalty phase.

However, the panel was persuaded by Libberton’s ineffective assistance of counsel claim, and Fletcher opined that Libberton had been diligent in pursing the evidence which had not been presented to the state court and was excluded by the district court.

“Given the wealth of evidence that Libberton was able to present to the state court despite the state court’s refusal to provide funds to aid in his investigation, and despite the lack of an evidentiary hearing in state court, Libberton was remarkably successful in finding and presenting evidence to state court,” he said.

Based on the expanded record, Fletcher reasoned that defense counsel had been unconstitutionally ineffective.

Even though defense counsel had interviewed Libberton’s mother, Fletcher noted that the only mitigating witnesses called were “tenuously connected to Libberton,” “had only tangential knowledge of Libberton’s family history, and had no knowledge whatsoever about the details of the crime and Libberton’s role in it.”

The judge also wrote that defense counsel failed to find and present evidence demonstrating that Libberton had not been the leader in the attack on Maya, or that would have revealed Libberton’s abusive childhood or impeached the key prosecution witness.

Such evidence would have “dramatically transformed the case for mitigation,” Fletcher said, concluding that defense counsel’s conduct required Libberton’s sentence be vacated.

In Jones’ case, defense counsel was a public defender who had been an attorney for little more than three years and had never been lead attorney on a capital case. At sentencing, the attorney relied entirely upon a court-appointed expert to testify about his client’s mental health.

On direct appeal, the Arizona Supreme Court upheld Jones’ conviction and he subsequently petitioned for state post-conviction relief.

However, the judge who heard the petition was the same one who had sentenced Jones to death two years earlier, and denied Jones’ ineffective assistance claims after conducting a limited evidentiary review.

Right of Access

The Arizona Supreme Court denied review and Jones filed a federal habeas petition which was denied, but Judge Sidney R. Thomas explained on appeal that, under Ake v. Oklahoma (1985) 470 U.S. 68, a criminal defendant has a right to access a competent psychiatrist to assist in the presentation of a defense.

“A few phone calls and a two hour meeting the night before trial…do not add up to ‘access to a competent psychiatrist,’” he wrote.

The judge also noted that although defense counsel presented evidence at trial that Jones had been under the influence of methamphetamine, alcohol and marijuana around the time of the murders, the attorney presented a “completely inaccurate picture of [Jones’] life” by failing to explain Jones’ genetic predisposition towards substance abuse or that he had been abusing alcohol and drugs for over 10 years in order to cope with his mental illness and “lifetime of abuse.”

Thomas reasoned that the lack of neuropsychological testing, partisan mental health experts, and the failure to accurately present a defendant’s life history would be sufficient to undermine confidence in a death sentence on their own, but “in combination there can be no question that the deficiencies were fatal.”

Judges Betty B. Fletcher and Michael Daly Hawkins joined Thomas in his decision.

The cases are Libberton v. Ryan, 07-99024 and Jones v. Ryan, 07-99000.


Copyright 2009, Metropolitan News Company