Tuesday, April 5, 2011
U.S. Justices Revive Death Sentence in Tarzana Murders
By KENNETH OFGANG, Staff Writer
The U.S. Supreme Court yesterday reinstated 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.
In a 6-3 decision, the justices said the California Supreme Court reasonably concluded that Scott Lynn Pinholster was not entitled to a new penalty trial.
Justice Clarence Thomas, writing for the high court, said that even if Pinholster’s trial lawyers were ineffective in failing to discover and present additional mitigating evidence, there was no prejudice becaue no reasonable juror would have voted against the death penalty.
Lower federal courts had thrown out the sentence. The Ninth U.S. Circuit Court of Appeals, sitting en banc, voted 8-3 in December 2009 to affirm a district court ruling granting habeas relief due to ineffective assistance of counsel at the penalty phase of the 1984 trial.
U.S. District Judge Gary L. Taylor, since retired, 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.
That panel said Pinholster’s 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.”
Ninth Circuit Judge Milan D. Smith Jr., however, wrote for the en banc court that the state high 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 and correctly predicted that the U.S. Supreme Court would reinstate the 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.
Thomas yesterday said the Ninth Circuit erred in considering evidence that was presented to the district court but not to the state trial court in evaluating the reasonableness of the California Supreme Court’s decision.
Considering such evidence, the justice said, was inconsistent with the highly deferential standard of review dictated by the Antiterrorism and Effective Death Penalty Act of 1996, Thomas said. The act, he noted, requires that the state court’s ruling be upheld unless it “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law.
“This backward looking language requires an examination of the state court decision at the time it was made,” Thomas wrote. “It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.”
As for the alleged ineffectiveness of counsel, Thomas wrote, the record showed that the lawyer pursued a mitigation strategy of seeking to elicit sympathy for the defendant’s mother. Billing records, he noted, showed that the lawyers did investigate possible alternative strategies.
The strategy they settled on appears to have been reasonable under the circumstances, and might well have been undercut by the additional evidence that habeas counsel contended should have been introduced, such as school records that would have shown that she was an indifferent parent, Thomas said.
Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy joined Thomas’ opinion in full.
Justice Samuel Alito concurred in the result, but argued that evidence presented at a district court habeas corpus hearing is properly reviewable by the court of appeals in determining the reasonableness of the state court’s ruling.
Justice Stephen Breyer dissented in part. He agreed with the Thomas that evidence not presented in state court cannot be considered on federal habeas review, but said a petitioner in Pinholster’s position should be given a chance to return to state court to present newly discovered evidence relevant to his claims.
Justice Sonia Sotomayor dissented, arguing that the state court record alone was sufficient to establish that Pinholster was denied ineffective assistance of counsel.
“The majority’s explanation for counsel’s conduct contradicts the best available evidence of counsel’s actions: Dettmar’s frank, contemporaneous statement to the trial judge that he ‘had not prepared any evidence by way of mitigation.’...The majority’s conjecture that counsel had in fact prepared a mitigation defense, based primarily on isolated entries in counsel’s billing records, requires it to assume that Dettmar was lying to the trial judge.”
Even if the defense did forego other mitigating evidence as part of a “family sympathy defense” strategy, Sotomayor argued, the adoption of that strategy without further investigation was not consistent with professional standards prevailing at the time, the jurist wrote.
Justices Ruth Bader Ginsburg and Elena Kagan joined in Sotomayor’s conclusion that the Ninth Circuit could reasonably conclude that the defendant did not receive effective assistance.
The case is Pinholster v. Ayers, 03-99003.
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