Federal court's role debated

9th Circuit sends back many cases -- some say for good reason.

By FRED LUDWIG
Californian staff writer
e-mail: fludwig@bakersfield.com

Kenneth Wong / Special to The Californian Attorney Gary Sirbu, co-counsel for Richard Montiel, poses in the office of his Oakland home office. Next to Sirbu are several of the file boxes containing the paperwork for Montiel’s habeas corpus appeal. Montiel was convicted of murdering a 78-year-old man.

The long, winding path from death sentence to execution takes defendants and their ever-growing case files through a series of courts.

Between the trial court and final review by the U.S. Supreme Court, California cases land on the bench of what has become known as a boomerang appellate court to death penalty advocates -- the 9th Circuit Court of Appeals.

Many cases that finally make it to the 9th Circuit are tossed right back to California courts with the death sentences reversed.

In fact, on Wednesday the 9th Circuit overturned the 14-year-old Kern conviction and death sentence of a one-time Hells Angel for two stabbing deaths.

"The personnel on that court overwhelmingly are opposed to the death penalty and are prepared to engage in Machiavellian legal tactics in order to prevent its imposition," said Kern County District Attorney Edward Jagels.

But many Death Row inmates' attorneys said the court isn't slanted. Prosecutors are just losing on the facts after a thorough examination by 9th Circuit judges, they say.

Whether Machiavellian or simply thorough, the 9th Circuit appellate court and federal courts under its jurisdiction do overturn capital cases in large numbers, according to a Columbia University School of Law analysis of federal court circuits with the largest capital caseloads.

The study found the 9th Circuit had the largest reversal rate of the group over a 22-year period ending in 1995.

In that time, it overturned 62 percent of its capital cases.

Kern and the 9th Circuit

The 9th Circuit struck down two Kern death sentences this year, both times involving cases that had almost made it through the appeals process.

Of Kern County's 23 Death Row inmates, the closest to execution was Robert Garceau until Wednesday's reversal. Now his fate is unclear.

Garceau was sentenced in 1987 over the drug-related deaths three years earlier of Maureen Bautista, 38, and her 13-year-old son, Telesforo Bautista III.

Garceau already had been sentenced to 33 years to life in prison for a separate murder. The Kern judge presiding over the Bautista case told jurors they could consider that previous murder to draw conclusions about Garceau's character.

That instruction improperly invited the jury to consider that Garceau had a propensity to kill, the 9th Circuit ruled.

The California Supreme Court had earlier said that instruction was bad but Garceau's guilt was backed up by "overwhelming evidence." Several witnesses testified against Garceau saying he had confessed to the killings, said Assistant District Attorney Stephen Tauzer.

But the 9th Circuit judges said those witnesses were biased having been involved in drug manufacturing with Garceau and even helping Garceau dispose of the bodies.

"The evidence against Garceau was not weighty," the judges wrote.

Before Garceau, David Leslie Murtishaw had been the closest Kern inmate to execution.

Murtishaw was convicted in 1979 of shooting to death three college students.

He got as far as the state Supreme Court where his sentence was reversed in 1981 for improper testimony allowed at trial.

Murtishaw was brought back to Kern, retried, reconvicted and re-sentenced to death in 1983.

His case got past the state Supreme Court the second time around, but was reversed by the 9th Circuit June 26 of this year for improper jury instructions.

Local prosecutors said they likely will try him a third time.

For relatives of the victims, the case has been mind boggling.

"One gives up after a while," said Tibor Kassai, brother-in-law of one of Murtishaw's victims, Ingrid Etayo. "It's absolutely ludicrous something like this should take 20 years without a resolution."

In the first decade after Murtishaw's sentence, family members would occasionally check in with officials to see how the appeals were progressing.

Kassai said he isn't bothered by the 9th Circuit's high reversal rate in general terms because he worries about the possibility of putting to death innocent people.

But in Murtishaw's case, there never was a claim of innocence.

His attorney, David Schwartz said Murtishaw was hallucinating from a PCP flashback at the time of the killings. He thought he was being attacked when he shot the three victims, Schwartz said, and that should reduce the crime.

Etayo begged for mercy before she was shot, prosecutors said. Her pleas went unheeded as Murtishaw reloaded his .22-caliber rifle several times during the killings.

"How can you live with that?" Kassai said. "How can you rationalize it? You can't."

He remembered the then 22-year-old student was planning to embark on economics postgraduate studies in London before she crossed paths with Murtishaw.

"She was bright, and she was alive, and she was full of anticipation and expectation," Kassai said.

California backlog

The Garceau and Murtishaw sentences have not been the only death sentences to come whizzing back from the 9th Circuit.

In fact, California seems to have a tougher time getting death sentence approval from the 9th Circuit than the other eight western states under the 9th Circuit's jurisdiction.

All other 9th Circuit states have higher execution rates than California, including several that were substantially higher, a U.S. Justice Department study shows.

About 9 percent of Death Row inmates nationwide were executed during the 26-year period reviewed in the study.

Most 9th Circuit states tallied a lower percentage of executions than the nation as a whole. But several had considerably higher rates than California's 1 percent.

Arizona and Washington matched the nationwide percentage, Justice Department researchers found. Montana executed 13 percent of its Death Row inmates in the 26-year time frame studied.

Part of the reason for California's lower percentage of executions may be that it is slower getting cases through the state appeals process, taking longer to get defense attorneys appointed to cases and dealing with greater backlogs in lower courts.

In Arizona, for example, capital cases are generally through the state appeals process in about five years, according to Kent Cattani, Arizona attorney general's chief counsel over capital litigation.

Excluding Murtishaw and Garceau, there are now five other Kern inmates who have finished state appeals and advanced to the first step of the federal level, U.S. District Court. One other Kern inmate has made it to the 9th Circuit.

It is unknown how long they will linger in the federal system.

Of the 49 death penalty cases pending in the 9th Circuit appellate court from the various western states, most have been there two years or less, said David Madden, the court's public information officer. Only two have been there more than four years, Madden said. The court's most longstanding case was filed there seven years ago.

Fast track to death

Congress has tried to create a kind of death sentence expressway at the federal level, but with little success.

The Anti-Terrorism and Effective Death Penalty Act of 1996 set a process for fast-tracking death sentence appeals. Under the fast-track system, federal judges have six months to rule on appeals, and circuit court appellate judges have four months to review each case, according to the California Judicial Council.

But states must qualify to be allowed into the fast-track system, which isn't easy.

The 9th Circuit ruled in 1998 that California must appoint attorneys more quickly before qualifying for expedited federal review. Some death penalty backers hope attorney pay raises and other recent steps will eventually help the state qualify for fast-tracking.

Just this September, Arizona became the first state in the country given court approval to use the accelerated deadlines, Cattani said.

For death penalty advocates, the situation is unacceptable and either Congress or the U.S. Supreme Court need to take action to allow California onto that fast track, said Criminal Justice Legal Foundation President Michael Rushford.

But those on the other side believe just the opposite. In fact, they feel the fast-track deadlines set down in 1996 are unrealistic given the amount of information each case file contains.

"It's ridiculous, because the records in these cases are enormous, and the legal issues are gargantuan," said appellate attorney Gary Sirbu. "No judge can feasibly do that. Any judge who tried would be shortchanging our system of justice."

Obstructionists at work?

Some death penalty advocates believe a handful of judges on the 9th Circuit actively find ways to slow down cases, even at the expense of case law.

Judges let inmates raise last-minute issues, even when case law requires such claims to either be raised early in the process or not at all, said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation.

""It's contrary to Supreme Court precedent," Scheidegger said."

He pointed to three of the 9th Circuit judges as the worst offenders, saying they are execution obstructionist judges. Those three are Stephen Reinhardt, Harry Pregerson and Betty Fletcher.

But one of those named by Scheidegger said it's absurd to believe three judges could have that much influence on the numerous cases brought to the 9th Circuit.

Judge Reinhardt said individual judges cannot block death sentences singlehandedly because reviews generally are done in three-judge panels, and occasionally by 11-judge panels.

Pregerson and Fletcher did not return phone calls.

Saying the 9th Circuit is to blame for tardy cases is ludicrous, said one defense attorney.

"The judges are swamped with cases," said Garceau attorney Lynne Coffin. "These cases are extremely complicated, and it takes a long time for someone to become familiar with the records and the facts, in order to make a rational decision."

She denied 9th Circuit judges are slanted, saying attorney general's officials don't want to admit they are losing based on the facts of the cases.

It has been the California Attorney General's Office that has raised foolish issues trying to block Garceau's arguments, Coffin said.

"It's infuriating to hear them talk about the 9th Circuit slowing things down," Coffin said.

The only other Kern capital appeal that has advanced as far as the 9th Circuit is that of Ronald Lee Sanders.

Attorneys for Sanders are seeking 9th Circuit approval to file the case there, after the lower federal court's August rejection of his appeal.

In the Garceau case, Kern officials will wait to see whether the state Attorney General's office can get Wednesday's reversal overturned, admitting that is a long shot.

If the Attorney General's office fails, there is a good chance Kern prosecutors will retry Garceau, Deputy DA Tauzer said.

In the Murtishaw case, Kern officials already are dusting off the old files. If they did nothing, Murtishaw would serve a sentence of life in prison without parole.

But prosecutors said they probably will retry Murtishaw in what would be a legal oddity -- a third trial over a murder that is now 23 years old -- provided they can contact witnesses and dig up other evidence.

Officials need to check whether the sole victim who survived the shooting is willing to testify again, said Chief Deputy District Attorney Dan Sparks. They expect to bring Murtishaw back to Kern in coming months and appoint him a trial attorney. And there are still volumes of transcripts to re-read, and then a lengthy trial.

If Murtishaw receives the death sentence again, the appeals process will begin from step one.