Metropolitan News-Enterprise


Friday, August 15, 2014


Page 1


High Court Upholds Death Sentence for Double Murderer

Defendant Who Spat on Judge Horan Properly Excluded from Courtroom—S.C.


By a MetNews Staff Writer


A Los Angeles Superior Court judge did not deprive a capital defendant of his right to a fair trial in the penalty phase by excluding him from the courtroom, after he engaged in “egregious” misconduct, including spitting on the judge and throwing a bag of excrement and urine in the courtroom, the state Supreme Court ruled yesterday.

In an opinion by Justice Goodwin H. Liu, the justices unanimously agreed that Kelvyn R. Banks forfeited his right to be present during his 1999 penalty phase retrial. That proceeding was necessary because jurors deadlocked in the penalty phase of his first trial, after finding him guilty of two counts of first degree murder, along with numerous other offenses, including rape, attempted murder, robbery, and burglary.

The murders of which he was convicted occurred on two separate occasions.

Charles Coleman was shot and killed on July 1, 1996. A surviving witness identified Banks and said he raped and shot her after shooting Coleman in the bank of a head, then demanding that the woman, identified as Latasha W., tell him where Coleman kept his money and drugs.

Banks was also convicted of the July 26, 1996 murder of Charles Foster at an ATM on Vermont Ave. in Los Angeles. An eyewitness identified Banks as the shooter.

At the outset of the penalty phase retrial, Judge Charles Horan—now retired—noted that there had been a number of difficulties in ensuring Banks’ attendance at the original trial. While defense attorneys noted that the defendant had a history of mental illness and suicide attempts preceding his arrest in the cases, Horan had said at the time:

“If a guy has been trying to kill himself his entire life, one would suspect that one would succeed.  I am not trying to minimize your client’s problems.  I assume he has problems.  But when he has a court date that he does not want to make, his so-called attempts seem to coincide with my court calendar.” 

Noting that background at the time of the penalty phase, Horan admonished Banks that he would have to attend the trial unless he waived his right to do so in open court, or if he “bec[ame] disruptive and had to be removed.”

Later, as a panel of prospective jurors was exiting the courtroom, Banks threw the bag of urine and fecal matter and shouted at the judge: “You’re evil. Evil. Demon.”

At that point, the defendant went with a bailiff into lockup. Horan then announced he intended to exclude the defendant from the courtroom, but would allow him to have a speaker in lockup in order to follow the proceedings.

The next day, he explained his ruling to Banks, and asked if he wanted to follow the proceedings on a speaker in lockup. When Horan denied the defendant’s request to discuss the matter with his lawyer, he refused to answer, and the judge ordered him removed.

He then told the judge to “shut up” and spat on him from about 12 feet away.

Horan then ruled that the defendant would be excluded from the courtroom for the rest of the trial, but that he could be brought in briefly for specific purposes, such as witness identification. There was no alternative, the judge said, short of “complete mummification.”

At no time did the defense thereafter request that he be returned to the courtroom, but he was kept in lockup 10 feet away with the door open so that he could hear the proceedings.

The circumstances, Liu wrote yesterday, were so “unique and egregious” that the judge was not required to give additional admonitions before ordering exclusion for the duration of the trial.

“It is difficult to imagine conduct more repugnant to the orderly conduct of a trial or more disrespectful of the dignity of the courtroom and its participants than defendant’s act of throwing a bag of excrement and urine at the trial judge,” the justice wrote. “Moreover, we agree with the trial court’s observation that the degree of premeditation involved in creating and hiding the projectile in question belies any claim that his actions reflected a momentary lapse of impulse control.  Any remaining doubt as to defendant’s ability or willingness to control his behavior was dispelled the next day, when defendant spat on the judge from 12 feet away.  Defendant’s purposeful defilement of the courtroom went much farther than more typical types of misconduct, such as verbal disruptions or abusive language, that might call for a specific warning before a defendant is excluded from trial.”

Liu went on to say that the defense forfeited its claim that less restrictive measures, such as shackling, should have been considered. No such measures were requested at the time, the jurist noted.

Horan yesterday declined comment on the ruling.

The case was argued in the Supreme Court by Stephen M. Lathrop of Lathrop and Villa in Rolling Hills Estates for the defendant and Deputy Attorney General Allison H. Chung for the prosecution.

The case is People v. Banks, 14 S.O.S. 3426.


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