Monday, June 4, 2012

Phillips v. Ornoski, 673 F3d 1168 (9th Cir. 2012)

Comparable to many cases deserving of the death penalty, the facts are chilling.  The defendant Phillips explained a financial scheme to two men enabling them to defraud other people of their money.  In order to facilitate the fraud, Phillips secured cash from both men who agreed to the scheme.  At some point, the two men delayed paying money allegedly owed to Phillips but they agreed to meet and talk about it.

Phillips and a female companion drove to a remote location and met the two men who were seated in their car.  After a few words were exchanged among them, Phillips pulled out a handgun and shot both men several times.  He then poured gasoline on them and lit their clothes on fire. One man fled in burning clothes, but Phillips ran him over in his car. Phillips searched both men and took their wallets. Miraculously, one victim lived but the other man died.

Phillips and his companion fled the state, were arrested and charged with murder of one man, attempted murder of the other man, and robbery. In addition to testimony by the victim, the prosecution offered testimony by the female accomplice but without disclosing a promise of leniency to her.  Evidence also was submitted that Phillips had arranged for a "hit man" to kill the witnesses, and had admitted killing one of the victims. Phillips testified to an alibi but admitted he lied. The robbery charge to the jury was required for the special circumstance of felony murder warranting the death penalty.  The jury voted guilty on all counts, confirmed the special circumstance, and approved the death penalty.

On appeal of the conviction to the California Supreme Court Court, Phillips alleged the prosecutor had failed to disclose benefits promised to his female companion in exchange for her testimony.  The state court affirmed. Phillips filed habeas corpus in district court.  Denied.  On appeal, the 9th Circuit reversed on grounds of ineffective counsel and returned the case for an evidentiary hearing; Phillips v. Woodford, 267 F.3d 966 (9th Cir.2001). The Supreme Court reversed the 9th Circuit.  The 9th Circuit decision was so absurd that the reversal was obvious.

Phillips appealed the original district court decision denying his petition of habeas corpus to the 9th Circuit.  The 9th Circuit panel 2-1 majority affirmed on the merits of the counts alleged (compelled to do so by the Supreme Court decision) but reversed the death penalty.  The grounds alleged for reversal of the death penalty were the same as alleged in state court: failure of the prosecutor to disclose benefits to a prosecution witness in exchange for her testimony as an accomplice.

In one of the most inexplicable decisions ever written, the panel affirmed the merits of the case despite prosecution failure to disclose commitments to the witness, but invoked  the same reason for reversing the death penalty.   Here is the exercise in verbal prestidigitation: Under California law, felony murder is proven only if the death of the victim was committed to facilitate the robbery. Ordinary murder, committed by conduct unrelated to theft, does not constitute felony murder; Peo. v. Green, 27  Cal.3d 1 (1980).

The 9th Circuit majority used the Green case to hold that the murder and attempted murder by Phillips was not to facilitate robbery.  Just pure murder.  Therefore, the special circumstance instruction requiring felony murder had not been proven in the absence of evidence that Phillips robbed the two men.  Of course Phillips rummaged through the clothes of his victims and took their wallets.  Apparently that doesn't count.

The dissenting judge disagreed with the majority of the panel.  Remarkably, no other judge sought rehearing.  This case is another instance of a federal court overruling the California Supreme Court, the jury, and a federal district court judge.  The decision, in a trial of overwhelming evidence, invokes an arcane legal distinction to invalidate a death penalty.  According to the panel, failure to disclose a pre trial commitment to a witness does not affect the merits but it does affect the penalty. As the dissenting judge skillfully writes: "The question the majority addresses seems to be 'is there any conceivable, speculative possibility we can think of that would make Phillips guilty but without the special circumstance?'" 

This case was tried in 1977.  Affirmed by the California Supreme Court and a U.S. District Court judge;  wrongly reversed initially by the 9th Circuit panel whose decision was reversed by the Supreme Court; and in 2012 the panel unearthed an insignificant  and meaningless legal distinction to vacate the death penalty . Even if correct, and the prosecutor faulted, the overwhelming evidence justified the jury decision.

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