Criminal
Aug. 3, 2002
Subsequent Embrace of Religion Is Mitigation
SAN FRANCISCO - A sharply divided federal appeals court panel on Thursday overturned the 20-year-old death sentence of William Payton because a prosecutor erroneously told jurors they could not consider his religious conversion as a mitigating factor and the trial judge failed to correct the mistake.
In a 6-5 decision, the majority of an en banc panel of the 9th U.S. Circuit Court of Appeals said the error necessitated reversal of the sentence, while the dissenters dismissed the mistake as "harmless."
"By labeling the prosecutor's incorrect contentions mere 'argument,' the trial court not only failed to correct a critical misstatement of law but also effectively instructed the jury to consider the prosecutor's erroneous legal position," wrote Judge Richard Paez for the majority.
In a vigorous dissent, Judge Richard Tallman wrote, "I fear that as we wrestle with the fate of a defendant facing the ultimate penalty of death, we have elevated form over substance ... ."
And, invoking a slogan commonly used in anti-abortion and domestic violence cases, Tallman added, "In the process, one wonders whether our court has lost its conscience and no longer listens to the silent screams of the victims, who are also entitled to justice; nor considers the impact of its decisions on the safety of our communities, which are equally entitled to protection from recidivists like William Charles Payton."
The ruling invalidates Payton's death sentence for the 1980 Garden Grove rape and murder of Patricia Pensinger. He also stabbed Pamela Montgomery and her 10 year-old-son dozens of times after killing Pensinger, but the mother and son survived. The decision, however, does not disturb his murder conviction, as the court rejected challenges to that. Payton v. Woodford, 00-99000.
Deputy Attorney General Dane Gillette said that, given the close nature of the vote, the state would "very seriously" think about an appeal to the U.S. Supreme Court, but no decision has been made.
"This is not the only case affected," he said. "We have still got more than a few cases that could have the potential for a similar issue to be raised" because the same standard jury instruction was given. It was revised in 1983.
Payton admitted in jail he had problems with "sex and women" and that he would "stab them and rape them."
Although his defense lawyer presented no witnesses during the guilt phase of the trial, he did provide eight witnesses during the penalty phase who testified about Payton's "born-again" conversion to Christianity and his work helping other inmates during the nearly two years he awaited trial.
But the prosecutor told jurors, over the objections of Payton's defense attorney, that because the conversion happened after the crimes, the jurors could not consider it in mitigation when weighing whether to sentence Payton to death.
During closing arguments the prosecutor argued that mitigation applied to conditions at the time of the crime and not to "anything after the fact or later," according to the opinion.
The prosecutor told jurors, "What you've heard is just some jailhouse evidence to win your sympathy, and that's all. You have not heard any evidence in mitigation in this trial."
The trial judge recognized that the standard jury instruction was confusing on the issue. But he allowed both sides to argue the point and then declined a defense request to alter the instruction to make it clear the jury could consider any potentially extenuating circumstances that weighed in Payton's favor.
One year later, in a separate case, the California Supreme Court found the instruction was confusing and should no longer be given. People v. Easley, 34 Cal.3d 858 (1983).
The U.S. Supreme Court, reviewing the same jury instruction in Boyde v. California, 494 U.S. 370 (1990), held that the instruction allowed jurors to consider pre-crime mitigation, but Boyde did not address whether the instruction was improperly ambiguous when applied to post-crime evidence, according to Paez.
The majority resolved that unaddressed question in Payton's favor.
Gillette said he believes the majority misapplied Boyde, and that could affect other California death row inmates.
Payton's attorney, Dean R. Gits, a federal public defender in Los Angeles, said he was delighted with Thursday's ruling.
He said Payton remains very religious and that his conversion in prison has persisted for the 20 years he has been on death row.
The majority in Thursday's opinion found that the prosecutor's statement along with the judge's failure to clarify the instruction amounted to a constitutional error that denied Payton a fair trial. The trial judge allowed jurors to decide for themselves which side was correct.
"These circumstances likely stripped Payton of his only defense to the imposition of the death penalty," Paez wrote.
He rejected the idea that the erroneous instruction was harmless error, as the California Supreme Court held in 1994. Chief Judge Mary Schroeder and Judges Harry Pregerson, Wallace Tashima, William Fletcher and Marsha Berzon joined Paez.
Tallman was joined by Judges Alex Kozinski, Stephen Trott, Ferdinand Fernandez and Thomas Nelson.
Tallman also questioned the sincerity of Payton's conversion, calling it "this miracle on the cellblock."
"The effect, if any, of a jailhouse religious conversion on a defendant's character is a question readily discernible by jurors, who are probably better suited to weigh its value in mitigation than are judges," he wrote.
"The conversion may have counted for something but it was up to a jury two decades ago to decide how to value his fortuitous epiphany," Tallman wrote.
Paez took issue with Tallman's interpretation in a footnote, writing, "We steer clear of determining the value of the evidence in favor of ensuring that the jury had the opportunity to decide for itself whether Payton's religious beliefs were merely 'fortuitous.'"
Pamela Mac Lean
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