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HIGH COURT REVERSES MAN’S DEATH SENTENCE The California Supreme Court unanimously reversed a death sentence on Thursday, saying that a trial court judge had erred by not instructing jurors to consider whether the defendant actually intended to kill the victim. The reversal was the seventh in a capital case this year. The high court upheld Kevin Bernard Haley’s conviction on first-degree felony murder, but said the death sentence had to be overturned because Los Angeles County Superior Court Judge Judith Chirlin should have provided jurors with a so-called Carlos instruction. That instruction tells jurors that they must find that a defendant intended to kill in order to support a felony murder charge. Haley had claimed he didn’t intend to murder 55-year-old Delores Clement when he beat, raped, sodomized and strangled her during a burglary in her Los Angeles apartment in 1984. “Certainly, if the jury had considered whether defendant intended to kill Clement and returned a finding of guilt, that verdict would have been supported by substantial evidence,” Justice Carlos Moreno wrote. “But the evidence that defendant intended to kill Clement was not overwhelming,” he added. “Rather, the jury might have believed defendant’s claim that he did not intend to kill the victim and that she was alive when he fled the scene of the crime.” The ruling is People v. Haley, 04 C.D.O.S. 7893. — Mike McKee CIRCUIT POOH-POOHS ‘GHOSTWRITTEN’ OPINION Federal judges must write their own opinions and cannot simply sign an opinion that was “ghostwritten” by lawyers, the Third Circuit U.S. Court of Appeals has ruled. In Bright v. Westmoreland County, a unanimous three-judge panel issued a stiff rebuke to U.S. District Judge Arthur Schwab of the Western District of Pennsylvania after concluding that defense lawyers had submitted a “proposed opinion” and that Schwab adopted it “nearly verbatim” as his own. “When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the district court in this case,” U.S. Circuit Judge Richard Nygaard wrote in an opinion joined by Judges Theodore McKee and Michael Chertoff. Nygaard found there was “no record evidence which would allow us to conclude that the district court conducted its own independent review, or that the opinion is the product of its own judgment. In fact, the procedure used by the district court casts doubt on the possibility of such a conclusion.” As a result, Nygaard concluded that the Third Circuit was forced to remand the case to Schwab with an order requiring that he “engage in an independent judicial review.” — The Legal Intelligencer

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