The California Court of Appeal has been quiet lately. No new opinions published either today or Friday.
But the Ninth Circuit doesn't disappoint. Here's what it publishes today.
Over a year in the making (oral argument was in August 2010). It shows.
Here are the first four paragraphs of Judge Silverman's opinion:
"It is undisputed that on December 18, 1985, appellant Richard Samayoa beat Nelia Silva to death with a wrench in the course of burglarizing her home. Samayoa also beat to death Nelia’s two-year-old daughter, Katherine. The pathologist estimated that Nelia was struck in the head 24 times. The jury heard testimony that the faces of both mother and daughter were smashed in, their skulls crushed, and fragments of bone penetrated their brains. It is undisputed that Samayoa left Nelia and Katherine naked from the waist down — he said he did that to make the crime look like a rape — and then he stole jewelry from the Silva house that he gave away as gifts to members of his family. The mutilated bodies of both victims were found by Rolando Silva, Nelia’s husband and Katherine’s father. Photos of the decedents and of the bloody crime scene were introduced into evidence.
Nine years earlier, Samayoa had raped and sodomized a woman with multiple sclerosis, who begged him, 'Please don’t rape me. I’m a cripple.' He was convicted of burglary and rape and sentenced to prison. Five years later, while staying overnight at a friend’s home, Samayoa entered the bedroom of the friend’s sister and smashed a flower pot in her face in an effort to rape her. She suffered a laceration of her face that penetrated to her cheek bone. He was convicted of assault with a deadly weapon and again sentenced to prison. Samayoa also had a prior conviction for another burglary. Altogether, he had been sentenced to prison three separate times.
At the trial of the double Silva murders, which Samayoa conceded he committed, defense counsel presented testimony from three psychologists and a written report from a fourth to the effect that Samayoa suffers from, among other diagnoses, an organic brain disorder that could explain his violence. In addition, at the penalty phase of the trial defense counsel presented evidence that Samayoa had been a compliant prisoner during his previous incarcerations, proving that he can be safely incarcerated. They also presented evidence from his mother and sisters to the effect that they loved him and hoped his life would be spared.
The jury returned a penalty phase verdict of death after about 80 minutes of deliberation."
Judge Silverman holds that even if the defense lawyers had introduced testimony about Silva's terrible childhood, it would not have made a material difference. Maybe the jury would have deliberated for 82 minutes instead of 80. But given the undisputed facts of the case -- he beat a two-year old child to death, for goodness sake -- and the defendant's history, this is a guy who's going to be sentenced to death. So the trial court was right, particularly when the California court's decision is viewed with AEDPA deference.
When I finished reading that opinion, I readily said: "Seems totally right to me. No jury -- particularly one in San Diego -- is going to be persuaded by this stuff. He's going to die."
I noticed, of course, that Judge Reinhardt dissented from Judge Silverman's opinion. But that's not surprising, right? It's a death penalty case. He'll make whatever arguments he can.
But then I read Judge Reinhardt's dissent. And if Judge Silverman's opinion is -- standalone -- a persuasive assessment of the case, so too is Judge Reinhardt's. As with Judge Silverman's opinion, if your only exposure to the case was reading the dissent, I think the majority of readers would be persuaded. Here's the opening of Judge Reinhardt's dissent:
"This is a capital case in which the trial defense counsel, for reasons that are impossible to fathom, deliberately and knowingly refused to investigate the capital defendant’s abusive family background, the type of mitigating evidence that the Supreme Court has repeatedly emphasized is highly relevant to a jury’s decision whether to impose the death penalty. See, e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003). In fact, in this case it was the only mitigating evidence by which counsel would have had any realistic chance of persuading the jury to spare his client’s life.
Because Richard Samayoa’s trial counsel refused to investigate the circumstances of his client’s upbringing, the jury that sentenced him to death never learned that he was raised under unimaginably horrific conditions: that he was the victim of constant and severe physical and psychological abuse, that his family environment was rife with sexual abuse of children, and that he had drugs pushed upon him by abusive adult relatives starting at an extremely young age. Samayoa’s counsel had no strategic justification for failing to obtain such evidence and present it to a jury, especially as, in light of Samayoa’s brutal offense and his past brutal crimes, the only hope of persuading the jury to spare his life was to explain his criminal behavior as a product of the truly depraved conditions which from the outset shaped his existence. The failure to introduce that evidence probably made his death sentence inevitable.
The mitigation case presented by Samayoa’s trial counsel not only failed to provide the jury with a single reason to spare Samayoa’s life, but likely contributed to some degree to its decision to order him executed. The incompetence of the
psychological experts upon whom the defense relied to attempt to prove that Samayoa suffered from organic brain damage must have been evident to all, including the jurors: the 'experts' made basic mathematical errors in tabulating test results, diagnosed Samayoa with a non-existent psychological condition, [Footnote: Specifically, one of Samayoa’s experts, Dr. Saul Saddick, testified that Samayoa suffered from 'Organic Rage Reaction.' A government rebuttal expert noted that 'Organic Rage Reaction' is not a condition recognized by the American Psychological Association. Even today, more than
twenty years later, a Google search for 'Organic Rage Reaction' returns only three results, all of which are documents arising from Samayoa’s litigation that note there is no such condition as 'Organic Rage Reaction.'] and presented the jury with a mislabeled, upside-down diagram of the human brain. The testimony of the prison guards called by the defense was equally without import: the guards simply testified that Samayoa was 'above average,' for a prison worker. And the testimony of Samayoa’s mother and two sisters was of no assistance to him whatsoever: they testified that they loved Samayoa and would feel guilty if he were executed, because they helped turn him in. One sister stated that she would 'understand' if the jury sentenced him to death, and both testified that until they learned Samayoa was the culprit they had believed that whoever committed the murders for which he was convicted should be executed."
Here's a snippet of the underlying evidence that Judge Reinhardt concludes might have made a difference at trial:
"Samayoa was raised in a savagely violent family environment. Adult members of his extended family viciously beat one another bloody in front of children at family gatherings “pretty much every weekend.” The declarations of Samayoa’s cousins paint a picture of brutal, senseless violence among family members on a basis so routine as to amount to a ritual of sorts: Samayoa’s uncles beating their father (Samayoa’s grandfather) in front of his grandchildren; outsiders at family gatherings being set upon and beaten, parties that 'always ended up with major fights and blood on the walls.' Not surprisingly for a family in which '[v]iolence was a way of life,' Samayoa himself was regularly and severely beaten by his father, who did not work and spent his family’s welfare benefits on liquor. One family member recalls that, '[Samayoa’s] dad would beat the shit out of the boys,' and that Samayoa drew a disproportionate share of his father’s beatings, apparently because he refused to cry. That relative states that, '[w]hen . . . [Samayoa] was thirteen or fourteen years old, I saw him get beat five to ten times a month.' Another relative recounts that Samayoa’s father would lie on the family’s couch with a belt rolled up at his side, so that he would be able to beat his children with its buckle at a moment’s notice. Nor were belt buckles his only means of brutalizing his children: Samayoa’s mother recounted that, '[o]nce, when my husband was very angry with Richard, he put Richard’s hands in a flame to punish him.'"
Plus, because it's an opinion by Judge Reinhardt, no one gets off scot free. Not only do Samayoa's lawyers get tagged, but Judge Reinhardt is not shy about sharing his opinions about his colleages either, saying (among other things):
"To be sure, a truly determined and creative jurist could engage in speculation and conjure up fanciful strategic justifications for Popkins’s refusal to investigate Samayoa’s background. One could, if one were particularly imaginative,
speculate that Popkins was concerned that questions as to Samayoa’s childhood would alienate his family, and result in their refusal to testify. In such case, the jurors would not have heard that although his family had initially felt that the perpetrator of Samayoa’s offense deserved to be executed, they appreciated the greeting cards he occasionally sent them from prison. Or perhaps Popkins felt that he could not afford to divert his focus from the correctional officers who would testify that Samayoa was an above-average worker. However, even if such flights of fancy could provide a minimally colorable strategic rationale for counsel’s refusal to investigate Samayoa’s background (which they plainly cannot),
Samayoa’s lead counsel did not provide any statement to that effect, and second counsel stated that no such strategic calculation justified the refusal to investigate. On the basis of the record before us, it would be nigh impossible for a fairminded jurist to deny that the 'decision not to investigate [Samayoa’s background] did not reflect reasonable professional judgment.' Porter, 130 S.Ct. at 453."
You gotta love the third and fourth sentences of that snippet. You rarely see judges write things that are deliberately sarcastic. Love it.
So when you read both opinions, you have a much better sense of what's at stake. As well as the merits of both sides. Personally, I think that it's very difficult to tell how juries decide to sentence people to death, which -- alongside the review of the evidence -- is the most persuasive part of Judge Reinhardt's opinion. That stuff might well have made a difference to one or more jurors. By contrast, the most persuasive part of Judge Silverman's opinion is the recitation of the undisputed facts, which do indeed make Samayoa out to be a monster, which is how most jurors would indeed view him. If that's the case, it doesn't matter at all what made him a monster. He is one. Jurors would want to put him down.
So a fascinating debate. That ultimately revolves around how people decide who will live and who will die. With life-changing (indeed, life-ending) consequences for Richard Samayoa.
Judge Kozinski votes with Judge Silverman. So unless the case gets taken en banc, Samayoa gets killed.
