Apr. 14, 2002  

 State, U.S. courts at odds on death penalty sentences

DIFFERENT STANDARDS LEAD TO REVERSALS

By Howard Mintz

When it comes to death sentences, the California Supreme Court and federal courts seldom agree. The state's highest court upholds them. Federal judges overturn them.

 The conflict between these two powerful institutions can be seen in cases like that of James Richard Odle, who was convicted in 1983 of murdering a Contra Costa County woman and then killing a police officer in a shootout.

 Odle's guilt has never been in doubt. But last year, a federal appeals court reversed the death sentence based on evidence that had been disregarded by the state courts throughout Odle's 18-year legal odyssey.

 Long before the slayings, doctors treating Odle for injuries suffered in a car accident had removed part of his brain. The state Supreme Court, in rejecting his appeals on four occasions, never considered the brain injury relevant to whether Odle was mentally competent to stand trial.

 The federal judges not only considered the injury important, but also found that the state's failure to evaluate its impact on Odle may entitle him to a new trial.

 As Odle's case illustrates, federal judges and the state Supreme Court have developed very different legal standards for evaluating death sentences -- such different standards that nowhere in the country is there a more pronounced divide in the way a state high court and the federal courts administer death-penalty justice.

 A comprehensive Mercury News review of death-penalty appeals found 36 cases in which the California Supreme Court noted problems in a trial and decided they were not important enough to reverse a death sentence -- and a federal court later overturned the sentence because of those same problems.

 The review found that federal courts, by reversing six out of 10 California death sentences, are overturning a higher percentage of capital cases than any other state. But it is the California Supreme Court that has moved further from the national norm in ruling on these life-and-death cases, affirming nine of every 10 it reviews.

 Studies show that the California Supreme Court is less likely to overturn a death sentence than just about any of the 38 state high courts that review capital appeals.

 ``Maybe the reality is that state courts aren't looking at things they should be,'' said Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, a President Reagan appointee who has voted to affirm and reverse death sentences, and who wrote the ruling overturning Odle's sentence.

 ``I've been amazed and sometimes appalled at some of the things I've seen come out of the state system,'' he said.

 For California, the consequences of this conflict are enormous, with more than 600 inmates on death row waiting for their appeals to make their way through the system.

 Legacy of 1986

 Death penalty seen

 as political must The review indicates that the federal courts have become a formidable counterweight to the conservative California Supreme Court that grew out of the 1986 election in which voters removed Chief Justice Rose Bird and two liberal colleagues who consistently voted to reverse death sentences.

 That is particularly true of the San Francisco-based 9th Circuit, the nation's largest appeals court. The court, which covers California and eight other states, has voted eight times since November to reverse a California death sentence.

 California's seven-member high court includes six justices appointed by the tough-on-crime Republican Govs. George Deukmejian and Pete Wilson. And the death penalty remains such a political must in California that Gov. Gray Davis, a Democrat, demands support for it from his judicial nominees, including his recent choice for the Supreme Court, Carlos Moreno.

 Even some federal judges who review the California Supreme Court's work wonder whether the ghosts of the 1986 election still haunt the state's justices. Federal judges are appointed for life.

 ``It may well be they are saying, `What the hell, the 9th Circuit or the district courts will take care of it if there is a problem,' '' said one 9th Circuit judge, insisting on anonymity. ``We're free from political pressure.''

 California Supreme Court Chief Justice Ronald George strongly denied that political considerations have anything to do with the court's record in death-penalty cases. His court takes a hard look at every death sentence, he said.

 But George also acknowledged the conflict with his federal counterparts: ``It may just be we have different standards on prejudicial error than the federal courts,'' he said.

 ``The bulk of the cases in which they granted relief, we recognize some error,'' he said. ``But in the context of evaluating all the evidence and the law, we found'' the errors not prejudicial.

 Critics speak out

 Prosecutors decry

 federal reversals Death-penalty supporters say the problem is with the federal courts, which have been accused of blocking California's death penalty since at least 1992. That year, California executed its first inmate since the reinstatement of capital punishment, Robert Alton Harris, only after the U.S. Supreme Court issued an unprecedented order forbidding any more federal delays.

 Supporters say the federal courts are interfering with a death-penalty law that the state's voters strongly support, and that the state Supreme Court affirms most death sentences because California's capital trials are fundamentally fair. Prosecutors such as Gary Yancey, the former Contra Costa County district attorney who tried James Odle, call the federal court reversals ``nonsense.''

 Prosecutors are particularly frustrated because Congress enacted a law in 1996 intended to make it tougher for federal judges to second-guess the state courts in death-penalty cases. The U.S. Supreme Court has adopted a strict reading of the law, but even that hasn't mattered in California cases.

 ``The U.S. District Courts and the 9th Circuit are vehemently opposed to the death penalty,'' said Alameda County prosecutor James Anderson, who has sent more murderers to death row than anyone else in California. ``We're at their mercy.''

 To prevail in federal court, the last stop in the appellate process, death row inmates must show that their constitutional rights were violated at trial. And federal judges in California do appear to reverse a higher percentage of death sentences than their counterparts elsewhere.

 The Mercury News found that federal judges have overturned 36 of 58 cases in the state -- 62 percent -- since California restored capital punishment in 1978. Nationally, a Columbia University study found that all federal courts reversed about 40 percent of cases from 1973 to 1995. Because of California's long delays, few of its cases had reached the federal level by 1995.

 Only the Atlanta-based 11th Circuit, which covers Florida and other states, came close to the 9th Circuit, reversing 50 percent of its death sentences. At the other extreme, the conservative 4th Circuit reversed about 15 percent of death sentences in Virginia, Maryland and the Carolinas.

 A league of its own

 California reverses

 fewest capital cases The state Supreme Court, however, stands alone at the opposite end: the Mercury News found that since 1997 it has reversed seven of the 67 death sentences for which it has produced full rulings, or 10 percent. By comparison, the Columbia study found that other state high courts reversed about 40 percent.

 Even in Texas, which leads the country in executions, state courts reversed 31 percent, triple California's rate.

 ``The fact there are federal court reversals in California doesn't mean jack because there are no state court reversals,'' said Maria Stratton, the chief federal public defender in Los Angeles who has supervised dozens of death-penalty appeals.

 In fact, there is evidence that the 9th Circuit is more willing to uphold death sentences when state courts are more aggressive in weeding out flaws. Consider the case of Arizona, where the high court reverses two out of every five sentences it reviews, four times California's rate.

 When Arizona affirms a death sentence, the 9th Circuit tends to agree, reversing 42 percent of them, in line with the national average. One result is that Arizona has executed 22 people since 1992, compared with 10 in California, even though its death row is one-fifth the size.

 A second fact that stands at odds with the critics' portrayal of liberal bias in the 9th Circuit is this: The court has many conservatives among its current and former judges, and the Mercury News review shows that those conservatives have voted dozens of times to overturn death sentences.

 While Democratic appointees do vote more often to reverse sentences, Republican appointees voted to reverse in about a third of the cases.

 ``It's not a secret to anybody that the 9th Circuit views the death penalty different than some other places,'' says Idaho-based 9th Circuit Judge Stephen Trott, a Reagan appointee who usually votes to affirm death sentences. ``But we just call them the way we see them. I think the 9th Circuit as a court attacks these things very objectively.''

 Faulty defense

 Court downplays poor lawyering The central difference between the California court and the federal courts in capital cases is how they regard trial mistakes. And the review of reversed death sentences shows that the main example of this conflict is how judges view the issue of inadequate legal representation.

 Incompetent lawyering -- which can often be the difference between a defendant being sentenced to death and being sentenced to life in prison -- is the biggest reason for reversals in the federal courts.

 Federal judges have overturned 19 death sentences because of constitutionally defective representation -- half of all the cases they have reversed.

 In the state Supreme Court, by comparison, incompetent representation is the third-most-common reason for reversals. Of the hundreds of cases the state court has heard (most have not yet reached the federal level), it has reversed seven for bad lawyering.

The result can be seen in cases like that of Steven Ainsworth, who was convicted in 1980 of murdering a woman near Sacramento in the Sacramento area. The jury sentenced him to death after his lawyer put on four witnesses in the penalty phase of the trial during a one-hour defense.

 The California Supreme Court, without comment, rejected Ainsworth's claims that the verdict was unfair because his lawyer had failed to prepare for the penalty phase.

 But federal judges took a different view. In 1999, U.S. District Judge Lawrence Karlton reversed the death sentence, saying Ainsworth's legal defense ``amounted to no representation at all.'' Last fall the 9th Circuit agreed, affirming Karlton's decision.

Twenty-one years after trial, the appeals court concluded that Ainsworth's lawyer ``failed to investigate, develop or present the wealth of evidence available.''