Several weeks go the Supreme Court reversed the 9th Circuit on grounds of abusing its discretion by manipulating the record.  An appellate court “abusing discretion?”  Those words are nothing compared to the appropriate characterization of the 9th Circuit decision in this case.  In one of the most vicious, depraved, and heinous crimes ever committed, this one exceeds any other case.

The defendant Murdaugh threw the victim into the trunk of his car where he remained for several hours.  After opening the trunk, Murdaugh slammed a meat tenderizer onto the victim’s skull, picked up a metal jackhammer and thrust it into the victims’s face and skull. The defendant severed both hands and fingerpads from the victim, severed his head from the body, pulled out all his teeth to avoid identification, threw  the head and body into separate locations and covered them with horse manure.

After Murdaugh’s arrest and conviction, the trial judge ordered a competency hearing, and the doctors testified he was competent to plead guilty to this crime.  Murdaugh had also committed a previous murder of another victim by beating him to death.  At the trial in the instant case Murdaugh pled guilty, refusing to present any mitigating evidence at the penalty hearing and  was sentenced to death. The record establishes the trial court went to great lengths to apply the appropriate sentence in considering aggravating and mitigating evidence.

On direct appeal the state court affirmed the plea, sentence, and subsequently denied post conviction relief. The U.S. district court denied a petition for habeas corpus and the defendant appealed   The 9th Circuit opinion, written by the same judge who has vacated every death penalty case he served on  directly or en banc, not only criticized the state court proceedings but left some issues open for further argument after remand for further sentencing.

The panel thought the evidence of Murdaugh’s extensive drug use insufficiently considered  by the trial court as a mitigating factor. But Murdaugh submitted no mitigating evidence, refusing to do so. The  9th Circuit panel cited the records of the “competency hearing”  previously held to suggest the extensive drug use relevant as a mitigating factor.

Aside from that, this is an AEDPA case entitled to ssssstataecourt deference but its application completely absent from the decision except at the beginning of the opinion and never referenced again. The decision in this case is not only an abuse of discretion it is reprehensible.  No juror in the world would consider leniency to a man who engaged in the  despicable conduct described above.  And not just this savage murder but the one committed before that.  Does this panel think two murders is not enough for the death penalty?

This decision  is so irresponsible that an en banc hearing should be unanimous in favor of reversal.     

 Note: this case was subject to the Supreme Court decision requiring a jury to find facts warranting the death penalty.  Without discussing this procedural rule, the judge made the findings of fact under a revised state law in this case.