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While prosecutors in California may feel they answer to a higher power, the 9th U.S. Circuit Court of Appeals has made clear that it has the ultimate authority in its entire federal jurisdiction. In a recent opinion, the 9th Circuit vacated a death sentence because, at the close of the penalty phase of the trial, the prosecutor told the jury that the death penalty was sanctioned by God. The case, Sandoval v. Calderon, No. 99-99010 (9 Cir. Nov. 6, 2000), involved the conviction and sentencing of Alfred Arthur Sandoval, a member of the Arizona Marivilla gang who killed four people execution-style. After Sandoval was convicted of the murders, the state proceeded with the penalty phase of Sandoval’s trial, during which prosecutor David Milton told the jurors in his closing statement that God would support them returning a death penalty for Sandoval. “Let every person be in subjection to the governing authorities, for there is no authority except from God and those which are established by God,” said Milton. “Therefore, he who resists authority has opposed the ordinance of God … if you do what is evil, be afraid, for it does not bear the sword for nothing. For it is a minister of God, an avenger who brings wrath upon one who practices evil.” In its opinion, the 9th Circuit noted that the closing argument paraphrased the 13th chapter of the Book of Romans, a passage from the Bible that some interpret as providing justification for the imposition of the death penalty. The court agreed with Sandoval’s appeal, which claimed that the argument was both improper and highly prejudicial. “The prosecutor’s argument frustrated the purpose of closing argument, which is to explain to the jury what it has to decide and what evidence is relevant to its decision,” wrote Circuit Judge Mary M. Schroeder for the majority. “The jury’s decision is to be based upon the evidence presented at trial and the legal instructions given by the court. Argument urging the jury to decide the matter based upon factors other than those it is instructed to consider is improper.” Sandoval, first arrested for the murders in 1984, exhausted his appeals in the California state court system in 1994, after the California Supreme Court issued an opinion upholding Milton’s closing arguments. After an unsuccessful appeal to the United States District Court for the Central District of California, Sandoval brought his case to the 9th Circuit. “You have an improper argument that very well could have been the difference between life and death for Mr. Sandoval, and the California Supreme Court upheld the penalty,” said Michael S. Magnuson, the sole practitioner from Whittier, Calif., who argued Sandoval’s case before the 9th Circuit. “I think it shows how difficult it is to administer the death penalty procedurally. There are too many factors involved to administer the death penalty in an unbiased, proper way to make it work consistently.” In addition to the 9th Circuit finding that Milton’s comments were prejudicial, the judges held that the comments violated Sandoval’s Eighth Amendment rights because they asked the jurors to abide by a law they might consider higher than the Constitution. “In a capital case like this one, the prosecution’s invocation of higher law or extra-judicial authority violates the Eighth Amendment principle that the death penalty may be constitutionally imposed only when the jury makes findings under a sentencing scheme that carefully focuses the jury on specific factors it is to consider in reaching a verdict,” the opinion stated. The court also held that, by invoking religious language in his closing argument, Milton opened up the court to an Establishment Clause challenge. “When the State invokes Biblical teachings to persuade a jury, there is, at the very least, the appearance of state endorsement of those teachings,” Judge Schroeder wrote. “Similar Establishment Clause concerns are present in the [United States] Supreme Court’s decisions finding public school prayer unconstitutional. For these reasons, religious arguments have been condemned by virtually every federal and state court to consider their challenge.” As far as Magnuson is concerned, the invocation of God in a court proceeding has the potential to weaken the court’s authority. “When you bring in biblical authority, you’re brining in something that’s outside the law,” Magnuson said. “It’s obviously something many people would consider an authority that could pre-empt the secular law of the state. That’s very powerful. There’s a good risk that the jury will pay attention to that before the instructions from the judge and the facts of the case.” Milton has left his job as a prosecutor and is presently a Superior Court Judge in Los Angeles County. Repeated attempts by American Lawyer Media News Service to reach him at his court in Pomona, Calif., were unsuccessful.

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