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The Ninth Circuit U.S. Court of Appeals has found a death penalty case it likes. Though the court is known for overturning California death sentences, a unanimous, three-judge panel found Thursday that the activities of defendant Clarence Ray Allen, convicted of arranging the deaths of three people while serving time for first-degree murder, were too much. “Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment,” Judge Kim Wardlaw wrote for the panel, which included Judges Susan Graber and Richard Clifton. “Allen continues to pose a threat to society � and has proven that he is beyond rehabilitation. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.” While the court still found some of the same factors cited in past decisions overturning other death sentences — ineffective assistance of trial counsel, prosecutorial misconduct and court error — it nevertheless said Allen deserves to die. Deputy Attorney General Dane Gillette, who shepherds death cases for Attorney General Bill Lockyer, has been frustrated by previous Ninth Circuit decisions. But he called Thursday’s opinion the “right result,” and said his office was getting ready for the expected reconsideration request, as well as a possible filing with the U.S. Supreme Court. One of Allen’s lawyers, Michael Satris of Bolinas, said he planned to ask the court to take the case en banc . Satris said the panel erred because it determined that Allen did not get a fair penalty phase trial but then went on to conduct its own examination of mitigating factors — something that is supposed to be left up to juries. “Basically it’s a hypothetical trial,” Satris said of the panel’s 67-page opinion. “And when it’s for your life that shouldn’t be the way it proceeds.” But Gillette didn’t seem too worried about other appeals. He pointed out that Allen’s conviction was upheld by the state Supreme Court in 1986 — after Justices Joseph Grodin, Rose Bird and Cruz Reynoso had been ousted from the bench by voters, mainly for their stance on the death penalty, but before they had actually left office. “The case demonstrates just what a strong case the prosecution put on,” Gillette said. The opinion compares Allen’s situation to the circumstances described in several other Ninth Circuit cases where inadequate assistance and other factors were enough to merit overturning a sentence. One of the Ninth Circuit’s favorite reasons for overturning California death sentences — inadequate defense counsel — played into Allen’s case. His lawyer admitted to not preparing for the penalty phase of the trial until a week before it was to begin. Even so, the panel decided there wasn’t much to help Allen at that point. The evidence consisted mostly of testimony “that at some points in his life Allen had been nice to some people and that some people cared for him,” which couldn’t have “humanized” the defendant “during the time frame of the murder conspiracy at issue,” Wardlaw wrote. The case is Allen v. Woodford , C.D.O.S. 3859.

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