Post by Anja Nieser on Sept 14, 2006 11:47:15 GMT -5
Appellate court orders new sentencing for death-row inmate
Robert Charles Comer is going to get another chance to escape being
executed -- a chance he claims he does not want.
In a divided ruling, the 9th U.S. Circuit Court of Appeals concluded
Wednesday that it was improper to bring him into court for sentencing
while he was nearly naked, bleeding, shackled and exhausted. The majority
said that violated Comer's due process rights.
They also took a slap at Maricopa County Superior Court Judge Ronald
Reinstein for allowing Comer to be brought into court that way.
But the decision drew derision from Pamela Rymer, the dissenting judge in
the 2-1 ruling.
She pointed out that while Comer initially sought review of both his
conviction and his sentence, he has since repeatedly said he wants to drop
both. And Rymer noted that a federal judge concluded Comer knew exactly
what he was doing when he waived his rights.
She called the decision of her colleagues a "raw imposition of judicial
power."
But Judge Warren Ferguson writing the majority decision, said once the
appellate court had evidence that the sentencing was unconstitutional, it
could not simply walk away because Comer no longer cared to pursue his
appeal.
"The defendant is not taking his own life," Ferguson wrote.
"He is co-opting the power of the state's capital punishment system to
kill -- a power that must only be wielded in accordance with the
Constitution's fundamental protections," the judge continued. "The
people's interest in justice, which forms the state's power to execute,
should not be so easily commandeered."
Whether Comer ultimately will escape a lethal injection remains to be
seen. Wednesday's ruling orders an entirely new sentencing procedure. And
Comer, who has represented himself, could refuse to present any testimony
to suggest he should be spared. That, however, does not preclude a court
from considering evidence already in the record.
Kent Cattani, who is in charge of handling criminal appeals for the state
Attorney General's Office, said he intends to ask the U.S. Supreme Court
to overturn Wednesday' ruling. Cattani said he believes that once Comer
withdrew his appeal, the appellate court no longer had jurisdiction to do
anything more.
If Cattani is unsuccessful, though, the new sentence may not be decided by
a judge. That is because of a 2002 U.S. Supreme Court ruling which
mandates that defendants must be sentenced by a jury unless both sides
agree to leave it to a judge.
Wednesday's ruling also drew criticism from Barnett Lotstein, a special
assistant Maricopa County attorney. He said Comer was brought into the
courtroom this was because he refused to get dressed and fought with
detention officers.
"If there were any injuries to him it was of his own making," Lotstein
said.
That contention is backed by Comer himself: In a letter last month to
Assistant Attorney General John Todd, Comer said he was ready for a fight
when he was scheduled to go to court. He said when they removed his leg
irons, he kicked one officer.
"Of course that ended the dressing process and they got a blanket to wrap
around me but I kept pulling it off, so they ended up tossing it in my
lap, and into court we went," he wrote.
Comer was convicted of the 1987 murder of a camper at the Burnt Corral
campground at Apache Lake. Later that night Comer and his girlfriend
kidnapped a couple; he raped the woman.
He was not in the courtroom for his trial where he was convicted of 1st
degree murder and multiple counts of kidnapping, assault, robbery, rape
and sexual abuse. Nor was he at his presentencing hearing.
In fact, the appellate court noted that the sentencing was one of the few
times that Reinstein actually had a chance to see Comer.
Ferguson said bringing Comer into court that way tainted the whole
proceeding.
"When a judge is asked to decide whether a defendant deserves to live or
die, the judge ... must weigh those considerations that are often
unquantifiable and elusive," Ferguson wrote. "It is hard to believe that
any human being, no matter how well-trained to be impartial, would be
entirely unaffected by the dehumanizing impact of Comer's appearance."
Rymer said all that is irrelevant. She said once Comer decided to drop his
appeals -- and a lower court judge found he did that voluntarily -- there
is nothing left for she and her colleagues to decide.
Ferguson conceded that Comer never had to appeal his the conviction and
sentencing. But he said Comer did file those legal papers -- and did
present evidence that his sentencing was unconstitutional. And that, said
Ferguson precludes the appellate court from letting the case drop.
Reinstein is on vacation and could not be reached for comment. Comer
declined requests by Capitol Media Services for a phone interview from
prison.
(source: Arizona Daily Star)
Robert Charles Comer is going to get another chance to escape being
executed -- a chance he claims he does not want.
In a divided ruling, the 9th U.S. Circuit Court of Appeals concluded
Wednesday that it was improper to bring him into court for sentencing
while he was nearly naked, bleeding, shackled and exhausted. The majority
said that violated Comer's due process rights.
They also took a slap at Maricopa County Superior Court Judge Ronald
Reinstein for allowing Comer to be brought into court that way.
But the decision drew derision from Pamela Rymer, the dissenting judge in
the 2-1 ruling.
She pointed out that while Comer initially sought review of both his
conviction and his sentence, he has since repeatedly said he wants to drop
both. And Rymer noted that a federal judge concluded Comer knew exactly
what he was doing when he waived his rights.
She called the decision of her colleagues a "raw imposition of judicial
power."
But Judge Warren Ferguson writing the majority decision, said once the
appellate court had evidence that the sentencing was unconstitutional, it
could not simply walk away because Comer no longer cared to pursue his
appeal.
"The defendant is not taking his own life," Ferguson wrote.
"He is co-opting the power of the state's capital punishment system to
kill -- a power that must only be wielded in accordance with the
Constitution's fundamental protections," the judge continued. "The
people's interest in justice, which forms the state's power to execute,
should not be so easily commandeered."
Whether Comer ultimately will escape a lethal injection remains to be
seen. Wednesday's ruling orders an entirely new sentencing procedure. And
Comer, who has represented himself, could refuse to present any testimony
to suggest he should be spared. That, however, does not preclude a court
from considering evidence already in the record.
Kent Cattani, who is in charge of handling criminal appeals for the state
Attorney General's Office, said he intends to ask the U.S. Supreme Court
to overturn Wednesday' ruling. Cattani said he believes that once Comer
withdrew his appeal, the appellate court no longer had jurisdiction to do
anything more.
If Cattani is unsuccessful, though, the new sentence may not be decided by
a judge. That is because of a 2002 U.S. Supreme Court ruling which
mandates that defendants must be sentenced by a jury unless both sides
agree to leave it to a judge.
Wednesday's ruling also drew criticism from Barnett Lotstein, a special
assistant Maricopa County attorney. He said Comer was brought into the
courtroom this was because he refused to get dressed and fought with
detention officers.
"If there were any injuries to him it was of his own making," Lotstein
said.
That contention is backed by Comer himself: In a letter last month to
Assistant Attorney General John Todd, Comer said he was ready for a fight
when he was scheduled to go to court. He said when they removed his leg
irons, he kicked one officer.
"Of course that ended the dressing process and they got a blanket to wrap
around me but I kept pulling it off, so they ended up tossing it in my
lap, and into court we went," he wrote.
Comer was convicted of the 1987 murder of a camper at the Burnt Corral
campground at Apache Lake. Later that night Comer and his girlfriend
kidnapped a couple; he raped the woman.
He was not in the courtroom for his trial where he was convicted of 1st
degree murder and multiple counts of kidnapping, assault, robbery, rape
and sexual abuse. Nor was he at his presentencing hearing.
In fact, the appellate court noted that the sentencing was one of the few
times that Reinstein actually had a chance to see Comer.
Ferguson said bringing Comer into court that way tainted the whole
proceeding.
"When a judge is asked to decide whether a defendant deserves to live or
die, the judge ... must weigh those considerations that are often
unquantifiable and elusive," Ferguson wrote. "It is hard to believe that
any human being, no matter how well-trained to be impartial, would be
entirely unaffected by the dehumanizing impact of Comer's appearance."
Rymer said all that is irrelevant. She said once Comer decided to drop his
appeals -- and a lower court judge found he did that voluntarily -- there
is nothing left for she and her colleagues to decide.
Ferguson conceded that Comer never had to appeal his the conviction and
sentencing. But he said Comer did file those legal papers -- and did
present evidence that his sentencing was unconstitutional. And that, said
Ferguson precludes the appellate court from letting the case drop.
Reinstein is on vacation and could not be reached for comment. Comer
declined requests by Capitol Media Services for a phone interview from
prison.
(source: Arizona Daily Star)