An Arizona convict sentenced to death for a prison killing triggered by a fight over Kool-Aid won a new trial Wednesday when a federal appeals court ruled that jurors in his first trial were not told that they could find him guilty of second-degree murder because of a history of epilepsy.
The case, one of several death penalty cases in the West that have reached the U.S. 9th Circuit Court of Appeals and been returned to lower courts, involved an Arizona State Prison convict named Robert W. (Banzai) Vickers, who admitted killing his cell mate, Frank Ponciano, in 1978.
Arizona Deputy Atty. Gen. Jack Roberts said Wednesday that officials have not yet decided whether to prosecute Vickers again for the Ponciano murder. He said Vickers killed another fellow inmate the next year and has also been sentenced to death for that murder.
Vickers, 29, accused of carving the word \o7 banzai \f7 on his victim's back after killing him, allegedly admitted to a prison psychologist that he had strangled and stabbed Ponciano because he was "mad" at him for drinking his Kool-Aid and failing to wake him up for lunch.
Psychologist Kent Spillman testified that Vickers told him that after killing his cell mate he stood over him in his cell and yelled, "Banzai! You won't drink my Kool-Aid again!"
During his trial, however, Vickers denied making the confession, testified that he had no recollection of attacking Ponciano and pleaded insanity. A defense psychiatrist said he had a history of epileptic seizures and a brain lesion that could produce episodes of aggression and hostility.
The trial judge instructed jurors that they could return verdicts of first-degree murder, not guilty and not guilty by reason of insanity. The defense did not request an instruction of second-degree murder; the judge did not issue one, and Vickers was found guilty of first-degree premeditated murder.
In a unanimous decision by a three-judge panel of the 9th Circuit, Judge Anthony M. Kennedy of Sacramento said the extensive testimony about Vickers' epilepsy and mental problems "would allow a rational conclusion that the killing was not premeditated" and that a second-degree murder verdict might be appropriate.
"A jury reasonably could find that appellant was under the influence of an epileptic episode when he killed Ponciano and that the disorder impaired his ability to reflect," wrote Kennedy, one of the leading conservative judges on the 9th Circuit.
Joining Kennedy in the decision were Judges Melvin Brunetti of Reno and Stephen R. Reinhardt of Los Angeles. They pointed out in the decision that Vickers had a long history in prison of attacking other inmates and "regularly" carrying and using weapons in the prison.
"Appellant recently had been convicted of stabbing a fellow inmate," the decision said. "Other inmates testified that (he) periodically engaged in bizarre episodes during which he screamed and made animal-like sounds and punched and beat his head against the walls of his cell."
San Francisco attorney Edward M. Chen of the American Civil Liberties Union, who argued the case before the 9th Circuit, said Vickers was originally convicted of grand theft in 1977 and was sentenced to three to nine years in prison. Chen said he is now serving an additional 10-year sentence for one of his prison assaults.
Besides the killing of Ponciano, Arizona officials said, Vickers was found guilty of killing another inmate the next year. They said he stuffed toilet paper into the mouth of convict Buster Holsinger as he slept, smeared it with Vaseline and set it on fire.
Roberts said Vickers was also sentenced to death for that murder and added that the case is now before the Arizona Supreme Court for review.