Brown, Jill (Acting Warden) v. Payton, William (03/22/2005)

Questions presented: Did the 9th Circuit violate 28 U.S.C. 2254(d) when it found the California Supreme Court objectively unreasonable in holding that California’s "catch-all" mitigation instruction in capital cases is constitutional as applied to post-crime evidence in mitigation?

BY SARAH ALLER, MEDILL NEWS SERVICE

In Garden Grove, California, on May 26, 1980, William Payton went to a boarding house where he once lived. He received permission from the owner, Patricia Pensinger, to stay the night. Later, Payton entered the room of another boarder, Pamela Montgomery, and raped and stabbed her to death.

After cleaning up, Payton entered Pensinger’s bedroom where she and her 10 year-old son slept. He inflicted more than 60 total stab wounds to the upper bodies of the victims. Both survived, in one of the bloodiest crime scenes ever seen by veteran investigators.

Payton was found guilty by a jury of first degree murder, rape and two counts of attempted murder in California state court.

During the penalty phase of the trial, Payton’s attorneys presented post-crime evidence consisting of eight witnesses who testified that Payton had been "born again" and had a true conversion to Christianity.

Four inmates stated Payton’s conversion was "sincere." The deputy sheriff assigned to the jail testified Payton conducted Bible study classes and had established a prison ministry. Another inmate testified he would have "unquestionably committed suicide" had it not been for Payton’s intervention.

Prior to closing arguments, the presiding judge held an in-chambers conference with both sides to review jury instructions. The California death penalty statute contains an 11-factor test requiring the jury to consider specific circumstances in determining whether they should impose the death penalty.

Factor (k), the 11th factor, functions as a "catch-all" instruction and directs the jury to consider "any other circumstances which extenuates the gravity of the crime even though it is not a legal excuse for the crime." In other words, jurors can consider any other evidence presented by a defendant in mitigation of a death sentence.

Payton believed his post-crime religious conversion should be considered by the jury. His lawyer requested an amendment to the factor (k) instruction that would have specifically directed jurors to consider "evidence of the defendant’s character, background, history, mental condition and physical condition."

While the trial judge agreed with Payton’s attorney’s interpretation of factor (k), he declined to amend the instructions, because the 11 factor instruction was taken verbatim from the California penal code.

In closing arguments, jurors heard conflicting statements from both sides as to whether factor (k) allowed them to consider Payton’s post-crime religious conversion evidence as mitigation of a death sentence.

Jurors sentenced Payton to die for the murder of Montgomery and gave him 21 years and eight months in state prison for the rape and attempted murders of Pensinger and her son.

On appeal, the California Supreme Court affirmed Payton’s conviction and death sentence, applying the 1990 U.S. Supreme Court precedent in Boyde v. California.

In Boyde, the Court upheld the constitutionality of the state’s "catch-all" factor (k) mitigation instruction in capital cases and specified that factor (k) considerations could only be applied to pre-crime events.

After exhausting his state court remedies, in May 1996, Payton filed a writ of habeas corpus in federal district court. The district court rejected Payton’s guilt phase appeal but agreed with his penalty phase arguments, thereby granting his habeas petition and vacating the death penalty.

However, the 9th Circuit Court of Appeals panel reversed and ordered the writ vacated. The entire 9th Circuit, sitting en banc, then reviewed the case…twice.

At issue were remarks made by Deputy District Attorney Marc Jacobs during the penalty phase of the trial. Jacobs told jurors that the jury instruction "doesn’t refer to anything after the fact or later." The judge did not correct Jacobs.

In the 9th Circuit’s first 6-5 decision, the court found there was error during the penalty phase and granted Payton’s habeas petition, concluding that there was a "reasonable likelihood that the jury applied factor (k) in a manner that prevented them from considering Payton’s mitigating evidence.

After Payton I was handed down, the U.S. Supreme Court decided in a separate case that habeas cases were "pending" before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) only if a petitioner had filed an "actual application for habeas corpus relief" in a district court, which Payton had done years before.

In light of this decision, the U.S. Supreme Court granted a writ of certiorari in Payton I, set aside the 9th Circuit’s 6-5 decision, and remanded the case for further consideration.

On Oct. 20, 2003, the 9th Circuit again in a 6-5 decision reaffirmed the federal district court’s earlier decision that the penalty phase instructions violated Payton’s constitutional rights, this time, considering the strict AEDPA standard in its ruling. Additionally, it ruled that the California Supreme Court unreasonably applied "clearly established" Supreme Court precedent to the facts in Payton’s case; Boyde did not apply because that case did not address post-crime evidence.

In Boyde, prosecutors told jurors they must consider mitigating, pre-crime evidence surrounding Boyde’s background and character, thus clarifying factor (k) instruction. Jurors were not provided specific instructions in Payton’s penalty trial.

The 9th Circuit majority concluded that "[t]here was a reasonable likelihood that, as a result of the prosecutor’s legally erroneous arguments and the court’s failure to correct the arguments with proper jury instructions, the jury did not consider and give effect to the post-crime mitigating evidence…this was a constitutional error."

Judge Richard Paez, writing for the majority, said the error had "substantial and injurious effect" on the jury’s verdict that necessitated a new penalty phase."

Payton is entitled to a penalty trial before a jury who is properly instructed that it must take his post-crime evidence in mitigation into account in determining whether to impose a sentence of life or death," he wrote.

In dissent, Judge Richard Tallman argued that the legal conclusions reached by their colleagues (and five justices of the California Supreme Court) were incorrect. "Those 12 judges were so far off-the-mark in their analyses of United States Supreme Court precedent that their shared legal conclusion—that Payton’s constitutional rights were not violated by the ‘unadorned’ factor (k) instruction —must be deemed objectively unreasonable," he wrote.

Tallman addressed the California Supreme Court’s conclusion that Payton’s jury did, in fact, more than likely consider his mitigating evidence before deciding death. In applying Boyde, the California Supreme Court concluded that it was not "reasonably likely" that the jurors believed the law required them to disregard Payton’s mitigating evidence.

Furthermore, Tallman said the California Supreme Court identified the "rule" (mitigating background and character evidence should not be precluded from the sentencing jury’s consideration) and decided that the "rule" was not violated by extending the Boyde to post-crime mitigation.

Tallman said their application was "not only reasonable, but correct," adding that the California Supreme Court is just as qualified as the 9th Circuit to distinguish and apply U.S. Supreme Court precedent.

"How that decision constitutes an unreasonable application of United States Supreme Court precedent is a mystery to me." Tallman wrote.

This case has never been about Payton’s innocence, only about specific jury instructions (or lack thereof) regarding factor (k) of the California Penal Code Death Penalty statute. Nearly 25 years later, the issue remains unresolved. Should Payton’s jury have been specifically given instructions to consider his post-crime religious conversion when deciding his sentence?

"This case looks at whether or not the factor (k) instruction in California, by the fair meaning of the term, really prevents them (the jury) from considering post-crime evidence," said Dean Gits, Payton’s attorney.

Lead prosecutor A. Natalia Cortina, explained that Payton’s case is a "battle between the state and federal courts."

"Certain judges of the 9th Circuit are refusing to abide by the dictates of AEDPA," she said. "This isn’t about the death penalty, it’s about resolving a legal question right now."

The case has potential consequences beyond California and could undermine sentencing programs in other jurisdictions across the country that do not "specifically call for pinpoint consideration of post-crime mitigation evidence or other categories of mitigation evidence," Cortina said.

"The federal court must respect the state court’s judgments . . . that’s what affects the nation in this case," Cortina said. "State courts work hard to decide a case and to have them reverse it 20 years later . . . that’s detrimental to state court autonomy."

On May 25, 2004, the U.S. Supreme Court accepted review in the case and allowed Payton to have the case heard without costs.

On March 22, 2005, a divided Court reversed, holding 5-3 that the jury that sentenced Payton to die had properly taken into account his religious conversion, even though the prosecution incorrectly argued it was irrelevant.

"Testimony about a religious conversion spanning one year and nine months may well have been considered altogether insignificant in light of the brutality of the crimes, the prior offenses, and a proclivity for committing violent acts against women," wrote Justice Anthony Kennedy for the majority.

In dissent, Justice David Souter, for himself, and Justices John Paul Stevens and Ruth Bader Ginsburg, argued that Payton deserved a new trial because of the prosecutor's repeated misstatements.

"The trial judge utterly failed to correct these repeated misstatements or in any other way to honor his duty to give the jury an accurate definition of legitimate mitigation," Souter wrote.

Chief Justice William Rehnquist did not participate in consideration of the case, due to illness.