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Appeals Panel Voids Man's Death Sentence

Courts: Decision says judge violated defendant's rights by exaggerating to jurors the governor's power to cut a life term.


For the second time in recent months, the federal appeals court that handles California cases has overturned a death sentence because a state judge exaggerated to jurors the governor's ability to reduce a life term.

In the past, the U.S. 9th Circuit Court of Appeals has frequently overturned sentences in death cases, leading to complaints that the court included too many liberal judges. But both Tuesday's decision in the case of Russell Coleman and the earlier decision on a similar issue were written by judges appointed by Ronald Reagan.

The state attorney general's office already has asked the U.S. Supreme Court to review the earlier ruling and may make a similar request regarding Coleman, who is 46 and has been on death row since November 1981.

Even if the U.S. Supreme Court upholds the ruling by the 9th Circuit panel, there is virtually no chance that Coleman will ever get out of prison, according to his attorney, Clifford Gardner of San Francisco.

Coleman was convicted of the 1979 rape and murder of Shirley Hill, a 28-year-old student and mother. The court's 3-0 decision, which upheld the conviction even though it voided the death sentence, came despite a finding by the judges that Coleman's trial attorney's performance had been "deficient" in certain respects. The court was particularly critical of the trial lawyer's failure to investigate or present to the jury evidence that a half-inch strand of hair found on Hill's hand was "inconsistent" with Coleman's hair.

Even so, Coleman's case was not prejudiced by the attorney's "deficient performance" because of the strength of other evidence, including fingerprint and blood evidence, wrote appeals court Judge David R. Thompson of San Diego. His decision was joined by Judges Melvin Brunetti of Reno and Mary M. Schroeder of Phoenix.

The appellate judges emphatically stated, however, that the trial judge's instruction to the jury during the case's sentencing phase clearly violated Coleman's constitutional rights.

The trial judge told the jury that under the California Constitution, the governor "is empowered to grant a reprieve, pardon or commutation of a sentence following conviction of the crime. Under this power, a governor may in the future commute or modify a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole."

The jurors also were told that they were not to consider the governor's commutation power in determining punishment.

The judge's instruction gave inaccurate information to the jury and "potentially diverted the jury's attention from the mitigation evidence presented" on Coleman's behalf, the appeals court ruled.

"Because Coleman had numerous prior felony convictions, the governor alone did not have the power to commute a sentence of life imprisonment without the possibility of parole to a sentence of life imprisonment with the possibility of parole," Thompson wrote. Under state law, in a case like Coleman's the governor would have to consult with the parole board and obtain the agreement of four of the seven justices of the state Supreme Court before commuting a life sentence.

Because of that, the trial judge's statement "inaccurately informed the jury that, unless they sentenced Coleman to death, he could be released into the community on the authority of one person, the governor," the appeals court ruled. "The jury was 'invited to speculate' that Coleman could be effectively isolated from the community only through a sentence of death."

Coleman's prior felony convictions include false imprisonment of a female college student, the rape of a 13-year-old girl and lewd conduct with an 11-year-old girl. That record makes it a virtual certainty that he will never be paroled, his attorney said.

"I think the 9th Circuit hit the nail on the head" in the sentencing decision, Gardner said. During the sentencing phase of Coleman's 1981 trial, the prosecutor stressed that Coleman would be a danger to the community if he ever got out of prison, Gardner said.

In January, another 9th Circuit panel, led by Judge Alex Kozinski, unanimously reversed a death sentence imposed on Robert C. McLain in 1981 for the 1979 rape and murder of a young woman in Ventura County. That panel also cited as its reason a trial judge's instruction to the jury that discussed the possibility of a life sentence being commuted.

The 9th Circuit first addressed the issue of the jury instruction in 1994, but the Supreme Court has not reviewed the subject. Dane R. Gillette, the senior assistant attorney general who heads the state's death penalty appeals unit, said he believes that all the 9th Circuit decisions on the question have been wrong and hopes the Supreme Court will now consider the issue. Gillette said he believes that only a small number of other death row inmates might be affected by Tuesday's decision.

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