Thursday, April 25, 2002
Ninth Circuit Orders New Death Penalty Trial in Co-Worker’s Murder
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday ordered a new penalty trial for a former burglar alarm salesman convicted of murdering a fellow employee in the course of a robbery.
Judge Harry Pregerson, writing for the court, said attorney Roger Agajanian failed to provide a competent penalty-phase defense for John Visciotti, convicted of the murder of Timothy Dykstra. The victim was lured, robbed, shot, and left at the scene in a remote area of the Anaheim Hills on Santiago Canyon Road.
The ruling vindicates the position of the late California Supreme Court Justice Stanley Mosk, who dissented from the 1992 decision affirming Visciotti’s death sentence and from the 1996 ruling denying his state habeas corpus petition.
Mosk, joined by Justice Janice Rogers Brown—Mosk had been the lone dissenter on the direct appeal—predicted that a federal district judge would find Visciotti’s arguments “persuasive” on consideration of “petitioner’s soon-to-be-filed petition for writ of habeas corpus.”
U.S.. District Judge Manuel Real of the Central District of California granted that petition, and the appellate panel yesterday said he was correct.
Visciotti was convicted of the murder of Dykstra and the attempted murder of another victim, who survived his wounds and identified Visciotti as the shooter. A co-defendant was tried separately and sentenced to life imprisonment without possibility of parole.
The state high court, while acknowledging deficiencies by Agajanian—who later resigned from the State Bar with unrelated disciplinary charges pending—said they did not affect the outcome. But Pregerson—joined by Judges A. Wallace Tashima and Marsha S. Berzon—disagreed.
Agajanian, Pregerson said, settled on an incompetent penalty phase strategy—trying to persuade the jury that the Visciottis were a close, tight-knit family that would be devastated by the execution of one of its members.
The strategy failed to meet the standard of competence, Pregerson said. Agajanian, he wrote, failed to investigate and discover mitigating evidence that would have produced a better defense, and should never have used a “family sympathy” argument that was not true and may have backfired by portraying the defendant in an unflattering manner.
Evidence presented in support of the habeas corpus petition, Pregerson noted, showed that Visciotti’s childhood was marked by physical and verbal discord between the parents, physical punishment and verbal abuse of the children, and mistreatment and isolation of the defendant.
None of that evidence was presented at trial, although it would have been available had Agajanian conducted a reasonable investigation, Pregerson said.
There was also evidence that showed that several of the defendant’s siblings had criminal records, as did his father.
Agajanian also failed, Pregerson said, to obtain adequate psychological evidence, and to interview the surviving shooting victim, or the co-defendant, or to review the transcript of the co-defendant’s trial for mitigating evidence.
In a separate opinion, Pregerson argued that Agajanian was similarly deficient in his preparation for the guilt phase, and that he should have a new trial as read. But Tashima, joined by Berzon, said there was no reasonable possibility that a jury would not have convicted even if a better defense had been presented.
The case is Visciotti v. Woodford, 99-99031.
Copyright 2002, Metropolitan News Company