By Michael Doyle
A Supreme Court justice on Monday blasted California's slow-moving death penalty process, but that was not enough to save convicted murderer Richard Delmer Boyer.
In a passionately worded solo dissent, liberal Justice Stephen Breyer said California's systemic capital punishment problems were sufficiently serious to consider Boyer's challenge to a penalty initially imposed in 1984.
"Put simply, California's costly administration of the death penalty likely embodies three fundamental defects," Breyer wrote, citing "serious unreliability, arbitrariness in application and unconscionably long delays."
Breyer's dissent was his latest denunciation of the death penalty, a campaign that so far has failed to gain high-court momentum. Coming now, though, it underscores the significance of filling the vacancy left by the death of capital punishment supporter Antonin Scalia.
It takes at least four justices to grant a Supreme Court petition and hear a case. On Monday, Breyer was the only one to want to hear Boyer's challenge. He was also the only one to explain his reasoning, with repeated citations to a 2008 report by the California Commission on the Fair Administration of Justice.
"It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the state," Breyer wrote.
Other inmates have been on California's death row longer than Boyer. One, former San Joaquin County resident Jerry Bunyard, has been there since February 1981. Former Sacramento County resident Joe Johnson also has been awaiting execution since 1981, and Richard Montiel has been waiting since his 1979 conviction in Kern County.
Boyer was initially sentenced to death 32 years ago following his conviction on two first-degree murder charges for the Dec. 7, 1982, killing of an elderly couple in Fullerton, Calif.
Francis Harbitz had sustained approximately 24 stab wounds to the neck, chest and back and had bled to death, according to a summary by the 9th U.S. Circuit Court of Appeals. Harbitz's wife, Aileen, had suffered 19 stab wounds and likewise had bled to death. Their son William found their bodies.
On the day of the murders, Boyer had drunk beer in the morning and half a pint of whiskey in the afternoon, smoked a PCP cigarette and shared a quarter gram of cocaine.
"Boyer felt that he was part of the horror movie 'Halloween II,' and that events in the house were changing speeds and items were becoming distorted," recounted Judge Diarmuid F. O'Scannlain of the 9th Circuit.
Boyer's first trial ended in a hung jury, and the California Supreme Court threw out his conviction following his second trial. He was convicted again at his third trial.
In his petition to the Supreme Court, Boyer argued that the Eighth Amendment's ban on cruel and unusual punishment should apply to a state that incarcerates a prisoner for lengthy periods under threat of execution. The state countered that appellate review necessarily takes time.
"Careful review after a defendant is sentenced to death provides an important additional safeguard against arbitrariness and caprice," the office of California Attorney General Kamala Harris said in a brief.
The court's denial of Boyer's petition Monday will not end the debate over death penalty, and the subject will occupy center stage whenever a Supreme Court nominee comes before the Senate Judiciary Committee.
Current nominee Merrick Garland, in his 1995 confirmation hearing for the U.S. Court of Appeals for the District of Columbia Circuit, called capital punishment a matter of "settled law now."
"I have been a prosecutor," Garland said at that hearing. "As a prosecutor, I have recommended that the government seek the death penalty."
(c)2016 McClatchy Washington Bureau