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Court of Appeal:
Presenting Mitigating Evidence Against Wish of Client Does Not Violate Sixth Amendment
Opinion Says Calling Witnesses, Over Defendant’s Objection, to Testify at Penalty Phase About Accused’s Traumatic Childhood Is Not Same as Admitting Guilt Without Consent
By a MetNews Staff Writer
The Third District Court of Appeal has held that an attorney in a capital murder case does not violate a client’s Sixth Amendment right to counsel by presenting mitigating evidence at the penalty phase against the defendant’s wishes, explaining that calling witnesses to testify about the accused’s traumatic childhood is not the same as admitting guilt, which is prohibited absent consent under U.S. Supreme Court jurisprudence.
At issue is the rule announced in the 2018 high court decision, authored by Justice Ruth Bader Ginsburg (now deceased), in McCoy v. Louisiana, which held that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that counsel refrain from admitting guilt, even when counsel’s view is that confessing offers the best chance to avoid the death penalty.
Petitioning for habeas corpus relief was Robert Maury, who was sentenced to death in 1989 by then-Shasta Superior Court Judge William R. Lund (now retired) for the first-degree murders of Averill Weeden, Belinda Jo Start, and Dawn Berryhill, and the forcible rape of Jacqueline H.
The Northern California defendant was known as the “Tipster Killer” because he called an anonymous police hotline after the crimes and provided the location of the bodies. Maury was reportedly motivated, in part, to kill the women due to reward money offered by sponsors of the hotline.
Before the penalty phase, Lund held in-camera hearings at which Maury explained his preference for the death penalty and that he did not wish for his attorney to call his sister or mother to testify about childhood abuse at the hands of an alcoholic father, citing concern for his family. After the hearings, the defense called his sister, Carol Cummins, and a psychiatrist to testify about his childhood.
Maury took the stand after the witnesses concluded their testimony to read a statement saying that he “had a normal childhood” and “[i]f you think I’m guilty, you give me the death penalty.”
His first state habeas corpus petition was denied by the California Supreme Court in 2011. In 2021, he filed a second petition, asserting 12 claims for relief, which was denied by Shasta Superior Court Judge David E. Flynn as being procedurally barred as a successive petition.
The Third District issued a certificate of appealability only as to his claim that he was constructively deprived of counsel under McCoy, a claim arguably unavailable to him at the time of his first petition. Justice Elana Duarte wrote the opinion, filed Wednesday, affirming the denial.
Acting Presiding Justice Harry E. Hull Jr. and Justice Stacy E. Boulware Eurie joined in the opinion.
McCoy Claim
Duarte noted that the McCoy decision recognizes that “[i]n criminal cases, counsel and client have different purviews” and that “[t]rial management, including strategy and tactics, is the lawyer’s province” while “[a]utonomy to decide…to maintain innocence of the charged offenses falls within the category of decisions reserved for the defendant.”
She explained:
“The constitutional right recognized in McCoy applies in limited circumstances; it is only implicated where defense counsel concedes guilt ‘over the defendant’s intransigent and unambiguous objection.’….To obtain relief under McCoy, the record must show (1) that defendant’s plain objective was to maintain his innocence and pursue an acquittal, and (2) that trial counsel disregarded that objective and overrode his client by admitting guilt.”
Applying the standard to the present case, she opined:
“Unlike in McCoy, at no point did counsel override Maury’s Sixth Amendment ‘autonomy right’ to control the fundamental objective of his defense by conceding guilt over his objection. Instead, against Maury’s expressed wishes, counsel presented mitigation evidence…and argument at the penalty trial from which the jury could have (at most) inferred consciousness of guilt on the part of Maury. However, this was not tantamount to an admission of guilt for purposes of the constitutional right recognized in McCoy….And the record reflects that…counsel asserted that Maury was factually innocent at both the guilt and penalty phases.”
The jurist continued:
“[W]hile it is undisputed that Maury’s objectives at the penalty phase were to maintain his innocence and protect his family (by not presenting mitigating evidence about his difficult upbringing), the record unequivocally reflects that Maury had a third objective: obtaining a death verdict….Indeed, to achieve his preferred penalty, Maury promised to ‘sabotage’ any efforts by his attorneys to ‘put on a good defense’ by taking the stand at the penalty trial and ‘piss[ing] the jury off.’ ”
Duarte added that “[t]o the extent defense counsel should not have presented a defense at the penalty trial against Maury’s wishes…any error was harmless.”
Structural Error
Maury argues that counsel’s error was structural under McCoy, calling for automatic reversal regardless of harm. Unpersuaded, the justice said that “[w]e decline Maury’s invitation to extend the structural error found in McCoy to the unique circumstances of this case.”
She wrote:
“In contrast to McCoy, Maury’s Sixth Amendment autonomy right to insist that his counsel refrain from conceding guilt was not violated. Rather, this case involved a disagreement over whether counsel should pursue Maury’s preferred penalty at the penalty phase of a capital trial; specifically, whether counsel should present mitigating evidence and argument overriding defendant’s desire to obtain a death verdict. Further, unlike McCoy, Maury achieved the objective he desired, notwithstanding his counsel’s best efforts to obtain a different result….Maury offers no cogent legal analysis explaining why the structural error found in McCoy extends to the factually distinct circumstances of this case.”
Duarte declared that “[b]ecause we find no structural error, and because Maury has failed to argue…that he suffered prejudice as result of the asserted error, he is not entitled to habeas corpus relief” and “because we conclude Maury’s claim fails on the merits, we need not and do not decide whether McCoy applies retroactively to final judgments or whether the superior court erred in finding the claim procedurally barred.”
The case is In re Maury, 2024 S.O.S. 3417.
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