OK Death Penalty Conviction Affirmed Despite Divided Jury, Failure to Give Manslaughter Instruction
Gilson v. Sirmons, 2008 WL 863034 (4/2/08) (Published) - A habeas death penalty affirmance by a divided court.
Reviewing the issue de novo [because the Oklahoma courts did not apply the correct standard], the 10th holds it was not a violation of due process for the jury to convict the petitioner of child abuse murder, even though the jury was divided as to whether he committed the crime by committing child abuse or by permitting the mother to do so. The means to commit the offense were not so disparate as to exemplify two inherently separate offenses.
Under the AEDPA standard, it was okay for the state court to hold it was not a violation of Apprendi for the state appellate court, not the jury, to find that the petitioner was a major participant in the felony and participated with a reckless indifference to human life, thus constitutionally qualifying the petitioner for the death penalty. Ring v. Arizona, 536 U.S. 584 (2002), which held that a judge's determination of the presence of aggravating factors in a capital case violated the Sixth Amendment, was decided after the state court proceedings were final. In light of the trial evidence, the appellate court's finding did not necessarily conflict with the finding of one or more jurors that the petitioner only permitted the child abuse. The evidence supported the appellate court's finding. Given that finding, the death penalty for permitting child abuse murder was not disproportionate.
It was procedurally incorrect to apply a statute enacted after the offense, but clearly both the old and new definition of a person responsible for child abuse applied to the petitioner under the facts, foreclosing an ex post facto claim. The petitioner had unquestionably voluntarily assumed a duty of care of the children.
The 10th holds for the first time that a state court's determination whether evidence justified a lesser-included offense is a legal determination subject to the "contrary to-unreasonable application" standard, rather than the presumed-correct standard of AEDPA. The state court did not err by failing to instruct on second degree manslaughter. The mother's testimony that supported the notion the petitioner was lying on the living room couch while she abused the child to death was riddled with internal inconsistencies and otherwise not credible and acceptance of her testimony would have led to an acquittal, not conviction of manslaughter, the 10th rules.
Under de novo review, it was okay to exclude the petitioner's expert on the lack of credibility of the traumatized children who testified. The subject matter is ordinarily for the jury to decide and the petitioner was able to extensively cross-examine the children.
Counsel's failure to present evidence of the petitioner's brain damage was not prejudicial. That evidence probably would have further convinced the jury of his guilt and dangerousness, the 10th concludes.
Judge Henry dissented. While acknowledging the horrible nature of the crime [8-year-old boy beaten to death and his body put in a freezer for months, while his siblings were told he had run away], Judge Henry believed there was sufficient evidence to give the manslaughter instruction. A rational juror could have believed the mother's testimony and found the petitioner guilty by virtue of his knowledge that the mother was beating the child, while he was lying on the couch.
Reviewing the issue de novo [because the Oklahoma courts did not apply the correct standard], the 10th holds it was not a violation of due process for the jury to convict the petitioner of child abuse murder, even though the jury was divided as to whether he committed the crime by committing child abuse or by permitting the mother to do so. The means to commit the offense were not so disparate as to exemplify two inherently separate offenses.
Under the AEDPA standard, it was okay for the state court to hold it was not a violation of Apprendi for the state appellate court, not the jury, to find that the petitioner was a major participant in the felony and participated with a reckless indifference to human life, thus constitutionally qualifying the petitioner for the death penalty. Ring v. Arizona, 536 U.S. 584 (2002), which held that a judge's determination of the presence of aggravating factors in a capital case violated the Sixth Amendment, was decided after the state court proceedings were final. In light of the trial evidence, the appellate court's finding did not necessarily conflict with the finding of one or more jurors that the petitioner only permitted the child abuse. The evidence supported the appellate court's finding. Given that finding, the death penalty for permitting child abuse murder was not disproportionate.
It was procedurally incorrect to apply a statute enacted after the offense, but clearly both the old and new definition of a person responsible for child abuse applied to the petitioner under the facts, foreclosing an ex post facto claim. The petitioner had unquestionably voluntarily assumed a duty of care of the children.
The 10th holds for the first time that a state court's determination whether evidence justified a lesser-included offense is a legal determination subject to the "contrary to-unreasonable application" standard, rather than the presumed-correct standard of AEDPA. The state court did not err by failing to instruct on second degree manslaughter. The mother's testimony that supported the notion the petitioner was lying on the living room couch while she abused the child to death was riddled with internal inconsistencies and otherwise not credible and acceptance of her testimony would have led to an acquittal, not conviction of manslaughter, the 10th rules.
Under de novo review, it was okay to exclude the petitioner's expert on the lack of credibility of the traumatized children who testified. The subject matter is ordinarily for the jury to decide and the petitioner was able to extensively cross-examine the children.
Counsel's failure to present evidence of the petitioner's brain damage was not prejudicial. That evidence probably would have further convinced the jury of his guilt and dangerousness, the 10th concludes.
Judge Henry dissented. While acknowledging the horrible nature of the crime [8-year-old boy beaten to death and his body put in a freezer for months, while his siblings were told he had run away], Judge Henry believed there was sufficient evidence to give the manslaughter instruction. A rational juror could have believed the mother's testimony and found the petitioner guilty by virtue of his knowledge that the mother was beating the child, while he was lying on the couch.
posted by Anonymous at 9:13 AM
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