Friday, July 3, 2009

Death Penalty: Ninth Circuit Reverses Again: Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009)

Determined never to allow an execution in states within its jurisdiction, the Ninth Circuit reversed another conviction and death penalty voted by an Arizona jury in a horrendous murder. Scott and two other defendants planned the murder of a five year old child to obtain life insurance proceeds based on an insurance policy issued to one the the defendants as a beneficiary. During the course of the police investigation, Scott confessed to the conspiracy among the defendants, led police to the dead body of the child, and admitted his role in the execution. He also disclosed the location of the firearm used to kill the child and bloody shoes worn by one of the other defendants. At trial he changed his story and said he was "duped" by the other defendants. The jury voted the death penalty. His conviction affirmed on appeal by the Arizona Supreme Court, Scott filed for post conviction relief in state court on grounds his lawyer did not call his father to the witness stand to ask for leniency. Petition denied. He subsequently submitted a second petition alleging the usual "ineffective counsel" defense. Denied on the grounds Arizona law prohibits amended petitions. The federal district court denied his petition. Scott appealed to the Ninth Circuit and a per curiam panel held Arizona had not followed state law permitting amended petitions for "good cause." According to the Ninth Circuit panel, this failure to apply state law did not constitute an "independent and adequate" procedural ground for "exhaustion" of state remedies as required by federal law. In support of that opinion, the panel cited one Arizona case. And Scott had "exhausted" state post conviction remedies because the state court should have read the Appendix to his brief to find an allegation of "ineffective counsel." In the course of the post trial proceedings, Scott fired his lawyer, and the newly appointed lawyer filed twenty three claims for relief. On his "ineffective counsel" claim, the Ninth Circuit panel said Scott was an alcoholic -"which may have" contributed to cognitive problems. "May have." And this: appellate counsel allegedly failed to challenge the jury finding that the crime was committed for pecuniary gain. "Thus it is possible ..." that the jury might not have voted the death penalty if this mitigating factor was taken into consideration. This speculation defies the prosecution case and the evidence in support of the murder. And the court holds the trial court should have allowed Scott's father to testify and ask the jury for leniency. On what ground? These factors are so tenuous, so frivolous, it is no wonder the Ninth Circuit inhibits imposition of the death penalty. In this case, Scott was convicted in 1991. And is still in court in 2009. Pet. for cert filed 8/31/ 2009

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