Metropolitan News-Enterprise


Tuesday, December 29, 2009


Page 1


S.C. Upholds Death Sentence for Man Who Represented Himself

Justices Unanimously Reject Claim of Mental Incompetence




The California Supreme Court has unanimously affirmed the death sentence for a convicted killer who insisted on representing himself at trial.

Justice Kathryn M. Werdegar, writing Thursday for a unanimous court, said San Bernardino Superior Court judges did not err in finding that Keith Desmond Taylor was competent to represent himself and that his waiver of counsel was knowing and intelligent.

The jury at his 1996 trial convicted Taylor of the 1994 murder of Marilyn Mishak, committed in the course of burglarizing Mishak’s Redlands home and robbing her. Taylor’s appellate lawyer, Deputy State Public Defender Barry Helft, argued that he was mentally incompetent to defend himself and that he did not understand the judge’s admonitions in that regard.

Taylor, a convicted burglar who had been released from prison two months before the slaying, was tied to the scene through fingerprints at the home and witnesses who said they saw Taylor in the area. Taylor argued that another man committed the crime and extensively questioned the prosecution’s experts in an apparent effort to shed doubt on the fingerprint evidence.

Taylor repeatedly clashed with his court-appointed counsel over matters of strategy, including counsel’s insistence on preparing for a penalty phase despite Taylor’s insistence that he was innocent. He made five separate requests for appointment of new counsel, one of which was granted, but when his last such request was denied, he asked that he be allowed to represent himself.

Request Denied

Judge Brian McCarville initially denied the request, saying Taylor “does not have the ability to proceed pro per as his own counsel in this case.” He explained that while some of defendant’s responses to his questions appeared “articulate” and “intelligent,” defendant’s “quizzical looks” and delays in answering suggested otherwise. 

In light of those comments, defense counsel asked for a competence examination, and the court appointed two psychologists to conduct it.

One reported that Taylor’s “cognitive functioning is intact” and that he was of “average intellectual ability” and “would be able to conduct his own defense in a rational manner.”  The other found him to be of “low average to borderline intelligence, with severe deficits noted in common sense reasoning and abstract thinking abilities,” and opined he “would have some difficulty in representing himself without an attorney.” 

McCarville found Taylor competent to stand trial, rejected his renewed request for self-representation, and sent the case to Judge James A. Edwards for trial. After Taylor twice more moved to represent himself, and after extensively questioning him regarding his awareness of the pitfalls of self-representation, the judge concluded that because Taylor was competent to stand trial, he had a constitutional right to waive counsel under Faretta v. California (1975) 422 U.S. 806.

Standby Counsel

Edwards named the defendant’s last court-appointed lawyer, Stephen Levine, as standby counsel. After jurors returned a verdict finding the defendant guilty of first degree murder with robbery and burglary special circumstances, and of robbery and burglary, the judge offered to reappoint counsel for the penalties.

Taylor said he would accept court-appointed counsel, other than Levine. Edwards found there was no reason Levine could not serve, and limited Taylor to the choice of being represented by Levine or remaining in pro per. Taylor chose the latter.

Prior to the penalty phase, however, Levine moved that counsel be appointed, arguing that, despite U.S. Supreme Court precedent to the contrary, there are circumstances in which a defendant who is competent to stand trial might be deemed insufficiently intelligent to represent himself in a capital trial.

Edwards expressed sympathy for that argument, saying the law “probably should be different,” but that he had no choice but to allow Taylor to represent himself absent a showing that he was no longer competent to stand trial at all.

After a penalty phase that focused on Taylor’s prior convictions for burglary and auto theft and three incidents of criminal violence, and in which Taylor presented no evidence or argument, jurors returned a death penalty verdict and Edwards imposed the death sentence.

Werdegar, writing for the high court, noted that in Indiana v. Edwards (2008) 128 S.Ct. 2379, the Supreme Court “held the federal Constitution does not prohibit state courts from denying self-representation to defendants who are competent to stand trial with an attorney, i.e., trial competent, but who lack the mental health or capacity to conduct their own defense at trial.”

That decision does not support reversal of Taylor’s sentence, Werdegar explained, because it is permissive, not mandatory, and California had not adopted a higher standard of competence for defendants to represent themselves.

Given Taylor’s apparent ability to understand the proceedings, and the lack of anything in the psychological reports that would cause the judge to doubt his view of the defendant’s competence based on his colloquy in court, it cannot be concluded that allowing Taylor to represent himself deprived him of due process or violated the Eighth Amendment, the justice said.

The court also rejected the defense contention that Edwards erred in denying a mistrial based on the prosecutor’s use of peremptory challenges to remove four of the first five African Americans called as prospective jurors.

Noting that the standard of review of such rulings is deferential, Werdegar found no basis to reject the prosecutor’s asserted race-neutral reasons for the challenges, including concerns about a potential juror who responded to a question about his “general feelings” on the death penalty by saying he didn’t “have any general feelings about anything,” and who expressed a belief that the criminal justice system was susceptible to political influences.

The case is People v. Taylor, 09 S.O.S. 7301.


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