Metropolitan News-Enterprise


Tuesday, September 6, 2011


Page 1


Ninth Circuit Upholds Orange County Death Sentence

Panel Rejects Killer’s Claim That Counsel Was Ineffective




An Orange County killer who has spent 29 years on Death Row and claimed to have undergone a religious conversion while awaiting trial did not receive ineffective assistance of counsel, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The case of William Charles Payton was back before the Ninth Circuit after a previous ruling, which granted him a new trial based on improper remarks by a prosecutor, was overturned by the U.S. Supreme Court in 2005.

 Payton was sentenced to die in 1982 for a 1980 rape-murder, accompanied by two assaults, in Garden Grove. The victims had been repeatedly stabbed, and investigators called the crime scene one of the bloodiest they had ever seen.

In its previous ruling, the Ninth Circuit held, 6-5, that the capital sentencing process was rendered “fundamentally unfair” when the trial judge allowed Deputy District Attorney Michael Jacobs to suggest that jurors were not required to consider Payton’s conduct after the murder, including his religious experience and good works in jail, as a mitigating factor.

Supreme Court Decision

The Supreme Court, however, held in a 5-3 decision, Brown v. Payton (2005)  544 U.S. 133, that the Ninth Circuit should have, under the Antiterrorism and Effective Death Penalty Act, deferred to a 1992 ruling by the California Supreme Court that the remarks were harmless, both because the jurors heard all of the mitigating evidence and because the aggravating factors were so overwhelming that the prosecutor’s remarks made no difference.

The case was returned to the lower courts to resolve other claims by the defendant that were not ruled upon, including the contention that defense attorney James Merwin inadequately investigated a potential case in mitigation based on Payton’s miserable childhood and claimed post-traumatic stress disorder.

U.S. District Judge Manuel Real of the Central District of California rejected all of the defense claims.

Senior Judge Pamela Rymer, writing for the Ninth Circuit, said Merwin adequately investigated potential mitigating evidence, and that there was no basis for an ineffective assistance claim based on what he learned during that investigation.

Payton’s habeas counsel, Deputy Federal Public Defender Gail Ivens, said the defense should have presented evidence that the defendant’s father was alcoholic and abusive and molested and raped Payton’s stepsister; that his stepfather was verbally abusive; and that he began using drugs as a teenager.

Adequate Investigation

But Rymer noted that Merwin “interviewed family members, sought records, and consulted experts who conducted thorough evaluations,” yet was told nothing about the type of dysfunctional behavior that the defendant now claims occurred.

The judge similarly found fault with the PTSD claim. She cited evidence that Payton didn’t see combat in Vietnam, having been removed from service 22 days after he arrived because of drug abuse.

The issue presented to the state high court, which Rymer said reasonably concluded that the jury would “undoubtedly have given [evidence of PTSD] little weight once it learned that the primary basis for the initial diagnosis—the vivid and compelling descriptions of defendant’s alleged combat experiences in Vietnam—was sheer invention.”

Rymer went on to say that even if jurors heard all of the evidence that the defense now says should have been presented, it would not have affected the death penalty verdict.

“The crimes here were vicious,” the judge wrote. “Evidence showed that

Payton had previously committed a similar crime in the past, using a knife on a girlfriend when he wanted sex. Even if his biological father were abusive in the first five years of Payton’s childhood and he felt sad and neglected, his experience is not comparable to those in other cases where courts have found a reasonable probability that the outcome would have been different.”

As for the PTSD claim, she added, he could not have shown the level of prejudice cited in Porter v. McCollum, 130 S. Ct. 447 (2009), a case involving a veteran who served on the front lines and whose attorney failed to conduct interviews or examine service records.

Judges Ronald M. Gould and Johnnie Rawlinson concurred.

The case is Payton v. Cullen, 07-99020.


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