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Court Again Voids Man's Death Penalty

Law: Second appellate ruling in two years involving S.F. killer may rekindle the battle between circuit and high courts over capital punishment.


For the second time in two years, a federal appeals court Tuesday overturned the death sentence of a San Francisco man because a state judge overstated to jurors the governor's ability to release a convicted murderer on parole.

Tuesday's 2-1 decision by the U.S. 9th Circuit Court of Appeals may reignite the long-running battle between the Circuit Court and the U.S. Supreme Court over capital punishment.

The ruling came in the long-running case of Russell Coleman, which became a campaign issue in the 1999 district attorney's race in San Francisco between incumbent Terrence Hallinan and challenger Bill Fazio, who had prosecuted Coleman.

The state attorney general's office says it will consider appealing the new ruling. If the decision stands, Coleman's sentence will become life without possibility of parole, according to Coleman's appellate attorney, Clifford Gardner of San Francisco.

Coleman, now 48, was convicted of the 1979 rape and murder of Shirley Hill, a 28-year-old student and mother. Coleman has been on death row since 1981.

Despite acknowledging deficiencies by Coleman's trial lawyer, the state Supreme Court upheld his conviction and death sentence in 1988.

Nearly a decade later, however, U.S. District Judge Ronald M. Whyte in San Francisco found unconstitutional the state trial judge's instruction to the jury that the governor had the power to "commute or modify a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole."

Whyte said that in reality, the governor did not have the sole power to commute because Coleman had numerous prior felony convictions--including the rape of a 13-year-old girl and lewd conduct with an 11-year-old girl. Under state law, in a case like Coleman's, a governor would have to consult with the parole board and secure the agreement of four of the seven justices of the state Supreme Court before commuting a life sentence.

A 9th Circuit panel, led by David R. Thompson, a Reagan appointee, unanimously upheld Whyte's ruling. The appeals court said San Francisco Superior Court Judge Claude Perasso's instruction invited the jury to speculate that the only way to effectively isolate Coleman from society was to impose a death sentence.

Less than five months later, the U.S. Supreme Court reversed and rebuked the appeals court for using minor procedural errors to overturn a death sentence. On a 5-4 vote, the high court said it was determined to "protect the state's sovereign interest in punishing offenders" and to avoid putting prosecutors through the "arduous task" of retrying or resentencing a defendant more than a decade after the original verdict.

The Supreme Court directed the 9th Circuit to reanalyze the decision to determine whether the jury instruction prejudiced Coleman's rights during the trial's penalty phase or was merely "harmless error."

On Tuesday, the 9th Circuit said Coleman's rights had indeed been violated. Thompson, joined by Judge Mary M. Schroeder of Phoenix, ruled that Judge Perasso's instruction had a "substantial and injurious effect" on Coleman because it diverted the jury's attention from the mitigation evidence presented by his lawyer.

"The instruction was not only unconstitutionally misleading, it undermined the very core of Coleman's plea for life," Thompson wrote.

Prosecutor Fazio compounded the problem by arguing "that not only would Coleman pose a continuing threat to prison personnel if he were sentenced to life in prison, he would remain a risk to 'all of us' if a death sentence were not imposed," Thompson said.

The 9th Circuit majority rejected the contentions of Deputy Atty. Gen. Morris Beatus that Coleman's mitigation evidence was inconsequential and that the jury's swift deliberations--three hours to render a death verdict--showed that they were not confused.

Judge Melvin Brunetti of Reno dissented, saying that the commutation instruction was harmless error. He noted that an earlier Supreme Court decision had permitted California to use an instruction that permits juries to consider the governor's power to commute a life sentence without the possibility of parole to a life sentence with the possibility of parole.

Brunetti also said the U.S. Supreme Court had previously ruled it permissible for a jury to consider "future dangerousness" as one factor in assessing whether to impose a death sentence.

Beatus said that he was disappointed with the decision and that his office may seek review from a larger panel of 9th Circuit judges or the U.S. Supreme Court. Factors in the office's decision will include the legal importance of the case, the likelihood of prevailing and the wishes of the victim's family, Beatus said. The state also could seek to retry the penalty phase of the case with a new jury.

Defense attorney Gardner said he thought the case was clear-cut. He said jurors had said afterward that they had spent most of their deliberations on the issue of whether Coleman might be released. Consequently, he said the judge's instruction clearly had a strong impact on the deliberations.

During his successful reelection effort for district attorney, Hallinan charged that challenger Fazio might have put an innocent man on death row.

In his 1997 ruling, U.S. District Judge Whyte said he could not "condone the conduct of the prosecution," in particular withholding some forensic evidence until the trial. Nonetheless, Whyte and the 9th Circuit upheld the conviction.

Fazio invited family members of the victim to come to a campaign debate and after they confronted Hallinan, he backed off the issue.

The case is Coleman v. Calderon, 97-99013.

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