Tuesday, July 1, 2008

Death Penalty: Ninth Circuit Reverses (Again): Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2009)

Belmontes v. Ayers (Warden) 529 F.3d 834 (9th Cir. 2008) June 16, 2008 Rehearing denied: 551 F.3d 864 (9th Cir. 2008) Ignoring the trial record, indifferent to its two previous reversals by the Supreme Court, and impervious to the emotional drain on family and friends of the victim caused by her vicious murder committed by a stranger (Belmontes), a Ninth Circuit panel (2-1) reversed the death penalty of this state court prisoner for the third time. The dissent writes a scathing decision excoriating the majority for rewriting the trial record. The majority decision begins by conceding the California Supreme Court originally affirmed the conviction and sentence of Belmontes with this language: The properly admitted evidence in this case-in particular the circumstances of the crime-was simply overwhelming. All California courts subsequently denied post conviction claims, and the federal district court denied Belmontes petition for habeas corpus. The Ninth Circuit panel in Belmontes listed all its previous decisions reversed in the same case by the Supreme Court but found one issue never litigated: defense counsel was ineffective in presenting mitigating evidence during the death penalty phase. The panel, reminding the reader its decision was unaffected by Congressional enactment of the Anti Terrorism and Death Penalty Act of 1996, a statute designed to prevent the Ninth Circuit from writing decisions similar to this third Belmontes decision, specifically mandates federal courts to afford deference to state court decisions. Not bound by this statute for Belmontes conviction in 1979, the panel ignored the California Supreme Court and the federal district court. The Supreme Court never addressed the ineffective counsel argument in its second reversal of Belmontes and sent the case back to the Ninth Circuit for further proceedings consistent with this opinion. Here is the Ninth Circuit panels interpretation of that language: The [Supreme] Court remanded, [returned] leaving us the task of resolving Belmontes remaining penalty phase claims, primarily ineffective assistance of counsel. The Supreme Court said nothing of the sort. The two judge Ninth Circuit panel majority criticized defense counsel for insufficient preparation of mitigating evidence in an attempt to humanize Belmontes, a challenging task for someone who burglarized a home and killed a defenseless woman by smashing her head with a dumbell in excess of twenty times. In fact, counsel presented several witnesses who testified to Belmontes childhood, his religious conversion in jail and an expert witness who testified Belmontes suffered from rheumatic fever. Although the Ninth Circuit panel repeatedly asserted rheumatic fever was a significant factor never developed to the jury, the expert witness diagnosed the condition as pretty mild. The panel also recited Belmontes drug history although neither the defendant nor any witness ever testified to his use of drugs on the night of the murder. Counsel for Belmontes was compelled to make a strategic choice. Presenting character evidence from other witnesses of his good behavior and non violence in mitigation of the death penalty opened up the prosecution to introduce evidence of a prior murder committed by Belmontes. Due to difficulties in securing testimony for that case, the prosecution accepted a plea to accessory after the fact. But the prosecution had other witnesses prepared to testify that Belmontes subsequently confessed to the murder. This devastating evidence was withheld from the jury based on counsels strategy not to introduce character evidence which the prosecution was prepared to rebut. Defense counsel explained this strategy at a subsequent hearing in federal court. The majority criticizes failure of counsel to produce Belmontes school records. To prove what? that his school record as a child was relevant? And this: another document in the California Youth Authority file suggested that Belmontes might (emphasis added) be suffering from depression. Based on that possibility, here is the next sentence from the court: Despite [defense counsels] awareness of . . . the possibility (emphasis added) that Belmontes suffered from depression . . . Jurors are not impressed by evidence of possible depression. In Belmontes penalty phase testimony, he second guessed the jury verdict, showed little remorse, and could not articulate in any concrete way in which he would contribute to society if sentenced to life in prison. He did not explain any of the mitigation evidence or offer the jury any reasons why the jury should spare his life. According to the panel majority, this was counsels fault. In a footnote to the text, here is what the panel majority said after citing another death penalty case previously decided by the Ninth Circuit: ...Belmontes crime only involved one victim (emphasis added) who was killed because she surprised Belmontes and his confederates during a robbery. A robbery initiated by a burglary, planned by Belmontes and his cohorts, using false pretenses to gain entry, followed by a brutal and horrifying crime. If Belmontes was surprised by the presence of an occupant of the residence, all he had to do was depart.  

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