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In a 4-3 unsigned majority decision, the California Supreme Court on Thursday upheld the death sentence for a man whose lawyers offered absolutely no defense during the penalty phase of trial. The 100-page ruling drew a sharp dissent from Justice Kathryn Mickle Werdegar, who was joined by Chief Justice Ronald George and Justice Carlos Moreno in saying that the trial court judge erred badly by not appointing defendant Prentice Snow a new attorney as he had requested. “That the jurors would have been unanimously willing to send a man to his death . . . had counsel reminded them of the weaknesses in the prosecution case and argued vigorously for the appropriateness of a life sentence,” Werdegar wrote, “was not a foregone conclusion.” Los Angeles jurors convicted Snow in 1990 of the first-degree murder of Alfred Koll, who was shot to death in his Pasadena pharmacy in 1980. Prosecutors, using purely circumstantial evidence, succeeded in convincing jurors that Snow, on trial for robbing Koll in 1979, sneaked off during a break in testimony and murdered the pharmacist to prevent him from testifying against him. What the dissenters — and the majority — in Thursday’s Supreme Court ruling found disturbing was the fact that Snow’s lawyers, Halvor Miller Jr. and Charles Maple, offered neither evidence nor arguments in mitigation during the trial’s penalty phase. Los Angeles Superior Court Judge Jack Tso expressed astonishment at the time, but got no answers from either attorney for their actions. Speculating it could be tactical strategy, he eventually refused to appoint new counsel. There was no official explanation why the majority, calling the case “both complex and troubling,” issued People v. Snow, 03 C.D.O.S. 2875, as a per curiam opinion. But it likely means that two or more justices wrote significant portions of the majority ruling, perhaps indicating that one of the dissenters authored the bulk of it but couldn’t secure a fourth vote and had to transfer the case to a justice in the majority for completion. The majority reached its decision by looking back to two previous penalty phases held in the same murder case against Snow. In the first, the trial judge granted a new trial based on an improper instruction, and in the second, the Supreme Court reversed in 1987 based on a prosecutor’s misuse of peremptory challenges. But in both phases, the high court noted Thursday, Snow refused to let lawyers offer mitigating evidence or argument. “It is quite clear,” the majority wrote, “that defendant at that time was opposed to the presentation of any case in mitigation, including argument to the jury, and that attorney Miller had to work within those extreme limitations.” The majority, saying Snow might have been trying to cause delay or a mistrial, also brushed away Snow’s one-word response — “yes” — when asked by Judge Tso whether he wanted new counsel. And they did not dismiss the possibility that Snow’s lawyers presented no penalty phase defense as a tactical maneuver , designed to force a reversal on the grounds of ineffective assistance of counsel. The court, however, left open the possibility of reversing the death penalty if the lawyers’ reasons are fleshed out in the still-pending habeas corpus petition. “If, on a fully developed factual record,” the majority wrote, “it is shown that counsel’s decision to forgo penalty phase argument fell below the applicable standard of competent representation, we will not hesitate to reverse the penalty judgment on habeas corpus and remand the matter for a new penalty trial.” One of the trial lawyers, Maple, of Altadena, couldn’t be reached for comment Thursday. The other, Miller, of Los Angeles, declined to discuss the case. In dissent, Werdegar, George and Moreno affirmed the murder conviction, but dissented over the death penalty on the basis that Snow had been denied his Sixth Amendment right to counsel. “The court’s error resulted in the complete absence of an attorney’s assistance to defendant at a critical stage of trial,” Werdegar wrote for all three. The trial court, she added, also should not have allowed Snow’s lawyers to waive argument in a case in which they had made no opening statement, called no witnesses, cross-examined none of the prosecution witnesses, presented no evidence in mitigation and made no closing argument. “The majority’s contrary holding — that the court may accept counsel’s waiver without any explanation and contrary to defendant’s expressed wishes,” Werdegar wrote, “seems to suggest that trial courts may turn a blind eye to an apparent abandonment of the client by appointed counsel in even the most serious of criminal cases.” As for the lawyers’ actions possibly being strategic, Werdegar would not abide that. “Leaving one’s client defenseless,” she wrote, “without any evidence or argument on his behalf, at a capital sentencing hearing, when the facts of the crime and the prosecution’s evidence of aggravating circumstances give the jury ample reason to find death the appropriate punishment, is neither a generally recognized nor an acceptable strategy for capital representation.” L.A. Deputy Attorney General Ellen Kehr, who represented the state, could not be reached for comment Thursday. But Berkeley solo Rodger Curnow, who represents Snow on appeal, seemed to have some sympathy for the high court. “The court was presented with a really terrible challenge in this case,” he said, “because this case featured what I call the no-nothing defense. There was no argument.” Curnow said he plans to petition for rehearing and to seek certiorari by the U.S. Supreme Court. He also said he has petitioned the court to be relieved from the habeas portion of the case because of serious health problems. The ruling “shows precisely why California has the highest rate of death penalty reversals at the federal level,” said Lance Lindsey, the executive director of Death Penalty Focus. “Fairness, justice, even innocence itself take a back seat with judges and prosecutors wedded to the political adrenaline of the death penalty.”

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