Court Overturns Death Penalty in ’80 Murder

A sharply divided federal appeals court Thursday overturned the death sentence of an Orange County man who was convicted in 1981 of the rape and murder of a Garden Grove woman.

The murder conviction of William C. Payton was upheld. But appellate judges said his constitutional rights were violated when the prosecutor at his trial told jurors deciding whether he should be executed to ignore evidence that he had become a devout Christian behind bars.

That, the court ruled, violated his constitutional rights. It said he should be given a new sentencing trial or have his sentence reduced to life in prison without possibility of parole.

The decision was the 10th since November in which the 9th Circuit Court of Appeals has either reversed a death sentence or upheld the decision of a federal trial judge who had overturned a death sentence.

Nine of those rulings came in California cases, the 10th from Washington, which is also part of the nine-state region within the 9th Circuit’s jurisdiction.

Dane Gillette, who heads the California attorney general’s death penalty unit, said the state has asked the U.S. Supreme Court to review five of the reversals and is likely to ask the high court to review Thursday’s, as well.

In this instance, the 9th Circuit affirmed on a 6-5 vote a 1999 ruling by U.S. District Judge Manuel Real in Los Angeles in the case of Payton, now 47.

Real’s decision had been reversed 2 to 1 by a smaller panel of 9th Circuit judges last year. In December, the full court voted to rehear the case.

Thursday’s ruling means that Orange County officials will have to reduce Payton’s sentence or grant him a new sentencing trial unless the U.S. Supreme Court overturns the circuit ruling.

Payton’s lawyer, federal public defender Dean R. Gits, argued successfully that his client’s constitutional rights were violated when a prosecutor told a jury to ignore evidence that Payton had become a devout Christian and taught a Bible study class while incarcerated.

California’s capital punishment law instructs jurors to consider a variety of factors in assessing whether to impose death after a murder conviction.

The last element--known as “factor k”--is a catch-all that tells the jury to consider any circumstance that “extenuates the gravity of the crime, even though it is not a legal excuse for the crime.”

The constitutionality of that language was upheld by the U.S. Supreme Court in another case in 1990, but that ruling did not address whether “factor k” applied to post-crime evidence of rehabilitation, nor did it address the effect on a jury if a prosecutor said such evidence could not be considered.

Thursday’s decision, written by Judge Richard A. Paez, said the prosecutor’s statement that the evidence was not “really applicable” and the judge’s failure to clarify the issue for the jury denied Payton a fair trial.

“It is reasonably likely” that the trial judge’s “failure to correct the prosecutor’s misstatements ... caused the jury to disregard relevant mitigating evidence and that this error was not harmless,” Paez wrote.

He relied on two U.S. Supreme Court decisions to support his opinion. The first was a 1982 ruling that said a state may not, during the penalty phase of a capital case, preclude the jury from considering any mitigating circumstance.

The second was a 1986 decision that said post-crime good behavior must be considered as mitigating evidence.

Judge Richard C. Tallman wrote a sharp dissent, suggesting that the 9th Circuit “has lost its conscience and no longer listens to the silent screams of the victims, who also are entitled to justice.” He said he did not believe that the prosecutor’s statements misled the jury and that if they did, they were “surely harmless.”

“Certainly, there might be substantial doubt concerning Payton’s sincerity, given the timing of his religious conversion, but even if the commitment were sincere, the jury may very well have concluded that such matters concerned Payton’s soul, not his life,” Tallman said. “It is true that in death penalty cases we ask for a higher standard to affirm the sentence, but that does not mean that a trial must be error-free.”

On May 26, 1980, Payton raped and killed Pamela Montgomery, stabbing her with a butcher’s knife a dozen times. He also stabbed Patricia Pensinger 40 times in her face, neck, back and chest and her 10-year-old son, Blaine, 23 times in the face, neck and back. The Pensingers survived the attacks, which occurred in a boardinghouse where Payton once lived.

The defense presented eight witnesses during the penalty phase of the trial, including Payton’s pastor, a deputy sheriff, four inmates, his mother and the director of a religious organization ministering to prisoners. “Their testimony, taken as a whole, tended to show that Payton had been ‘born again,’ made a sincere commitment to God and was performing good works in jail,” Paez wrote.

The pastor and the inmates all said they believed that Payton’s religious conversion was sincere, and a deputy sheriff said the prisoner led prayer meetings and had a positive influence on other inmates. Payton’s post-crime conversion was the only mitigating evidence offered by the defense.

During closing arguments, however, the prosecutor said the convict’s conversion to Christianity and good conduct in prison should be ignored because they occurred “well after the act of the crime.”

Payton’s defense lawyer moved for a mistrial, saying that the prosecutor’s comments were “completely contrary” to what the lawyers and the judge had agreed to previously.

The judge responded that what both attorneys said was “fair comment” but offered no clarification. The jury returned a death verdict, which was upheld by the California Supreme Court.

Public defender Gits said he was pleased with the outcome. But Gillette of the attorney general’s office said he was very troubled by the ruling. He said that, given the nature of the crimes, it was “incredible” for the majority to conclude that the jury would have declined to mete out a death sentence even if they believed in the sincerity of Payton’s conversion.