Petrocelli v. Baker, 862 F.3d 809 (9th Cir. 2017)

Another death penalty case reversed by the same judge who reverses other capital cases (including this one earlier ), never upholding the verdict regardless of the vicious and brutal murder the jury voted correctly. In this case, scouring the record of a defendant who filed three state habeas corpus cases rejected by state courts; a previous federal habeas corpus case reversed by the 9th Circuit; the instant case reversed by the 9th Circuit.

To begin, the judge assures us this case was not under AEDPA jurisdiction-the defendant constantly in court for this case starting in1996. The record reflects that the prosecutor asked a psychiatrist Dr. Gerow to interview the defendant and  determine his legal competency. After his examination the doctor concluded the defendant incurably violent, and testifies to his opinion at trial.  According to the 9th Circuit panel, a Supreme Court case rejects this process without a Miranda admonition and used as an admission of responsibility by the defendant.

At the trial the doctor testified he did not use the Miranda admonition and asked no incriminating statements from the defendant. The doctor only examined for legal competency and his testimony included nothing about an admission of complicity in the crime. Despite that, the panel concluded his testimony inadmissible.

Two defense doctors submitted their report on the same issue of competency, but without testimony, and concluded curability33 was a possibility.  Now the panel concludes no testimony and only a written report by defense doctors  overcomes the live testimony of a colleague. Apparently the court panel has never tried a case when the direct testimony of  a witness (a doctor who is not a detective) lacks the veracity over two written reports.  But the panel needs an excuse.

The panel criticizes the state court judge who had affirmed the conviction and lists his errors. For example, they commented on Doctor Gerow who did not interview the defendant on April 20, but on April 21. Devastating. The balance of the “list” of errors is equally trivial.

. Apparently the panel, who were not at the trial, decided the case for the jury. In fact, the panel offered their own opinion of the doctor whose testimony they had reviewed in an earlier case. Evidence by a witness who the panel had not seen as jurors did, was not  admitted at trial because the doctor had not Mirandized the defendant prior to a legal competency test.

One of the worst cases I have ever read.  Now the prosecution must  call all the witnesses again to hear evidence only on the death penalty. And people criticize California courts for tardy disposition of cases. The year 1996 and this case is still in federal courts on a simple ten day trial obviously warranting the death penalty.

The second judge on the court panel wrote an  equally absurd concurrence. the third judge signed nothing.


Leave a Reply