Metropolitan News-Enterprise


Friday, July 17, 2015


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Ninth Circuit Declines to Disturb Death Sentence, Says Trial Lawyers Were Not Ineffective




The Ninth U.S. Circuit Court of Appeals yesterday affirmed a district judge’s ruling that El Monte man sentenced to death for two Orange County murders did not receive ineffective assistance of counsel.

Judge Diarmuid F. O’Scannlain, writing for a unanimous panel, said it would have been objectively reasonable for Richard Boyer’s trial attorneys to conclude that there was no point in pursuing a defense claim of “unconsciousness” based on organic brain damage.

        Boyer was tried three times for the 1982 murders of  Francis Harbitz, 68, and Aileen Harbitz, 69, of Fullerton, the parents of an acquaintance of Boyer. Prosecutors said Boyer was a drug user and always short of money.

He was linked to the crime when the victims’ son told police that Boyer did yard work for the couple and had borrowed money from them, and that he always carried a buck knife.

His first trial ended in a hung jury, and his conviction and death sentence at a second trial were overturned on the ground that a confession should have been suppressed based on unlawful police tactics.

Prior to the third trial, Boyer moved to suppress the anticipated testimony of his girlfriend, Cynthia Cornwell, who was originally charged as an accessory, and other evidence, as “tainted” fruit of the illegally obtained confession. He also argued that Cornwell’s testimony and her consent to search the house that the two of them shared was coerced.

The motion to suppress was denied, and he was again convicted and sentenced to death, a result affirmed on direct appeal in 2006. His state habeas corpus petition was denied by the high court, and his federal petition was denied by Senior District Judge Gary A. Feess, whose ruling was upheld yesterday by the appellate panel.

O’Scannlain, writing for the appellate panel, said that while one expert raised the possibility of organic brain damage, recommending further testing that was apparently never done, defense counsel engaged numerous mental health experts in preparation for the three trials.

“Confronted with multiple medical evaluations, none of which identified organic brain damage, Boyer’s trial counsel could justifiably have concluded that further investigation was unnecessary,” the jurist wrote. “[W]e are satisfied that it was not unreasonable for the California

Supreme Court to conclude that Boyer’s counsel conducted a thorough investigation into his mental state and that such investigation satisfied the performance prong of Strickland [v. Washington], especially in light of the double deference owed that conclusion on federal habeas review.”

Even if the performance prong had been satisfied, the judge added, the prejudice prong was not. Given the testimony of Cornwell, and of another friend of the defendant’s, John Kennedy—who, like Cornwell, testified under grant of immunity—as to Boyer’s actions and statements on the day of the murder, the judge said, a reasonable jury would not have reached a verdict more favorable to the defendant based on testimony that he had brain damage.

The case is Boyer v. Chappell, 13-99006.


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