Ninth Circuit Upholds Death Sentence in Murder of Riverside Teen

Thursday, September 20, 2007

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Ninth Circuit Upholds Death Sentence in Murder of Riverside Teen

By STEVEN M. ELLIS, Staff Writer

Body The Ninth U.S. Circuit Court of Appeals declined yesterday to grant habeas corpus relief to a California prisoner sentenced to death for the rape and murder of a 15-year-old girl.

In an opinion by Judge Michael Daly Hawkins, the court agreed with U.S. District Judge Audrey B. Collins of the Central District of California that Albert Greenwood Brown received effective assistance of counsel during his trial and that Brown failed to demonstrate that his sentence of death by lethal injection violated the Eighth Amendment ban on cruel and unusual punishment.

‘Right Thing’

Supervising Deputy Attorney General Barry J.T. Carlton told the MetNews that “the Ninth Circuit did the right thing.”

Greenwood was convicted and sentenced to death for the 1980 rape and murder of Susan Jordan.

On Oct. 28, 1980, 15-year-old Jordan left her home in Riverside to walk to Arlington High School at about 7:30 a.m. She never arrived. Efforts throughout the day to locate her were unsuccessful, and that evening, according to trial testimony, Jordan’s mother received a telephone call.

“Hello, Mrs. Jordan. Susie isn’t home from school yet, is she,” the caller asked.

When Jordan’s mother replied that Jordan was not home, the caller said:

“You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.”

At Jordan’s mother’s request, the caller repeated the information, and then hung up.

Within a half-hour, Jordan’s mother received another call that said, “[o]n the corner of Gibson and Victoria, fifth row, you will find a white Caucasian body of a young girl in the orange grove.”

A third call was received while police officers were at the Jordan home later that evening,

“You can find Sue’s identification in a telephone booth at the Texaco station at Arlington and Indiana,” the caller said.

Officers at the Texaco station discovered two Arlington High School identification cards belonging to Jordan and a library pouch from a book.

Meanwhile, a police dog found Jordan’s body lying face down in the orange grove, with dirt piled up on both sides of her head.

Jordan’s body was nude below the waist except for socks, and her bra was partially pulled out from under her blouse. Her jeans were located elsewhere in the grove and a shoelace, apparently from one of her shoes, was wrapped tightly around her neck.

Investigators also found signs of a struggle and indications that the body had been dragged for some distance.

Later that evening, Jordan’s parents received another call.

“In the tenth row, you’ll find the body,” the caller said.

The Jordans recorded the call, and two acquaintances of Brown later identified his voice.

The next morning, police questioned passersby on the streets near the grove. Witnesses recalled seeing a black man approaching Jordan on the bike trail, standing in the grove as she walked by, or following her.

They also reported having seen a brown Trans Am matching the description of Brown’s car in the vicinity, and described the man they had seen as wearing jogging clothes. Some particularly described green running shorts and a green and white shirt.

Suspect Identified

The investigation quickly focused on Brown, and around one week later authorities obtained a search warrant for Brown’s residence. Inside, they found a telephone directory turned to the page containing the Jordans’ listing, newspaper articles about Jordan’s death under Brown’s bed, and two of the missing schoolbooks, one of which was the source of the library pouch.

A search of Brown’s work locker also revealed green running shorts and a green and white shirt, and under shorts found in the locker had semen stains.

At trial, three witnesses positively identified Brown as the man they saw near the grove on the day of Jordan’s death.

Although Brown’s mother testified that he was at home with her that morning, leaving the house for only about eight minutes to get milk, and then leaving for work at 8:14 a.m., the jury convicted him of first degree murder and of the special circumstance of murder in the course of rape.

At the penalty phase, the prosecution presented evidence that Brown had previously raped a 14-year-old girl in her home as she prepared to leave for school.

The defense presented psychiatric and background evidence suggesting that Brown suffered severe emotional problems, including sexual maladjustment and dysfunction.

Brown’s psychiatrist opined that Brown had killed Jordan out of shame for raping her, and that the phone calls indicated shame and a desire to be caught. He also opined that Brown was not violent by nature, but was only a threat to women and would not present a problem if sentenced to life in prison.

Several of Brown’s family members testified on his behalf and Brown took the stand, expressing remorse for the prior rape and asking the jury for mercy.

After deliberating for less than three hours, the jury returned a death verdict.

On direct appeal, the California Supreme Court affirmed Brown’s conviction, but reversed the penalty based on what it said was an improper jury instruction. The U.S. Supreme Court, however, reinstated the death sentence.

On remand, the California Supreme Court reversed again on the ground the trial court had failed to make a proper record when it denied Brown’s motion for modification of the death penalty.

On remand, Brown was again sentenced to death, and the state high court affirmed.

In May of 1996, Brown filed a federal habeas petition, but it contained many unexhausted claims. The district court stayed proceedings, and Brown filed a habeas petition with the California Supreme Court in November 1996.

The California Supreme Court denied the state petition on procedural grounds and on the merits in an unpublished opinion dated June 3, 1999, and Brown filed an amended federal petition in district court in Aug. of 1999.

The district court held an evidentiary hearing on two of Brown’s claims involving ineffective assistance of counsel at the penalty phase, and then denied relief on all grounds. However, it granted Brown a certificate of appeal on the two ineffective assistance issues and denied his motion to expand the certificate to other issues.

In an order filed May 15, 2007, the Ninth Circuit expanded the certificate to also include a third claim of ineffective assistance during the penalty phase, as well as Brown’s claim that lethal injection violates the Eighth Amendment.

Brown argued that his attorney, Joseph Peter Myers, was ineffective for failing to adequately prepare the psychiatrist to testify during the penalty phase. He contended that, because negative information that the psychiatrist had developed about Brown relating to Brown’s state of mind during the prior rape of a 14 year old girl could be exposed during cross-examination, Myers should not have called the psychiatrist to testify at all.

Hawkins disagreed, saying that, despite the potential disclosure of negative information, the jury was already aware of the previous rape, and Myers needed to at least offer some explanation for both the Jordan rape/murder and the prior rape, particularly in light of the prosecution’s suggestion that Brown had killed Jordan because he had learned a lesson about leaving witnesses alive.

Although Myers’ action had risked negative disclosures, Hawkins said the psychiatrist’s testimony had actually benefited Brown by portraying him in a more human and sympathetic manner than the prosecution. As a result, Brown’s attorney had not acted unreasonably.

Brown also argued that Myers failed to conduct an adequate background investigation that would have yielded information that would have allowed a competently trained neuropsychologist to present a more compelling case to the jury. He asserted that Myers failed to uncover alleged abuse of Brown by his mother, failed to uncover military records showing that Brown had been disciplined for being absent without leave (instead of for impersonating an officer, as Brown had testified to the jury), and failed to investigate defendant’s academic background which would have indicated that Brown suffered from dyslexia and attention deficit disorder.

But Hawkins rejected those arguments as well, noting that any information gained from these records would only have bolstered the psychiatrist’s testimony and would not have resulted in a different outcome in penalty phase.

“Brown had a mountain of aggravation to overcome, including the prior rape of a young girl, the rape and murder of the young victim in this case, and his tormenting phone calls to the family following the event,” he said. “It is doubtful that this information… would have generated significantly more sympathy than the explanation of Brown’s neurosis that was already given.”

Brown’s next argument challenged the death penalty itself, arguing that it violates the Eighth Amendment ban on cruel and unusual punishment because it does not comport with evolving standards of decency, and it inflicts pain that is cruel, wanton, and unnecessary. In support of his argument, he relied a cases decided under 42 U.S.C. § 1983 holding that California’s lethal injection protocols violated the Eighth Amendment.

But Hawkins rejected this argument, noting the California Supreme Court had denied the argument when Brown had raised it previously and that the court, pursuant the federal Anti-Terrorism and Effective Death Penalty Act of 1996, could only review whether the California Supreme Court’s decision was an objectively unreasonable application of clearly established U.S. Supreme Court precedent at the time of the decision. Because no precedent holding lethal injection unconstitutional existed at the time of the California Supreme Court’s decision, Brown’s argument failed, he said.

Hawkins swept aside Brown’s assertion that he was deprived of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights during the guilt phase of the trial when the trial court did not, sua sponte, declare a mistrial after four jurors overheard comments about the case made by members of Brown’s family during lunch in a nearby restaurant because Brown could not demonstrate a substantial and injurious effect on the verdict.

Hawkins also disagreed with Brown’s arguments that the death penalty is unconstitutionally arbitrary and influenced by defendants’ socio-economic background, and that the death penalty is inherently unconstitutional under U.S. Supreme Court precedent because Brown conceded that he had no valid legal basis for either claim under existing law.

Jan B. Norman, Brown’s counsel, did not return a call seeking comment on the decision.

Hawkins was joined in his opinion by Judge Sidney R. Thomas and Judge Carlos T. Bea.

The case is Brown v. Ornoski, 05-99008.