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Reversing a death penalty judgment Thursday for a convicted triple murderer, the California Supreme Court laid blame squarely on the shoulders of former Contra Costa County Superior Court Judge Michael Phelan. “We are troubled by this result because the error here at issue easily could have been avoided,” Chief Justice Ronald George wrote for a unanimous court in People v. Stewart, 04 C.D.O.S. 6310. The court found Phelan, who retired from the First District Court of Appeal in 1998, erred when he excused five prospective jurors based solely on written answers to a questionnaire. The prospective jurors had indicated that their views about the death penalty would make it very difficult for them to ever impose it. The court upheld the conviction of Richard Bert Stewart and the special circumstance finding for the 1989 fatal shootings of his mother, stepfather and the couple’s boarder, but ordered a new penalty trial. In its published opinion, the Supreme Court leaned heavily on Wainwright v. Witt, 469 U.S. 412. Under Wainwright, a potential juror who personally opposes the death penalty can’t be excluded, George explained, “unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict.” In this case, the juror questionnaire fell short by not directly addressing the “pertinent constitutional issue” of whether the prospective juror’s views would prevent them from returning such a verdict, George wrote. Had Phelan followed up with oral questioning and then decided the five potential jurors couldn’t serve, “the court’s determination would have been entitled to deference,” the court concluded. But “the penalty judgment in this matter was doomed from the inception, merely because the trial court failed to take the extra few minutes that would have been required to clarify the ambiguity.”

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