The case today presents a now-classic (and failed) attempt to use evidence of drug use and past head injuries as mitigating evidence in a capital case. In both of the defendant’s two retrials for sentencing, the jury sentenced the defendant to death.
Although a number of scholars, practitioners, and others have commented on the use of brain-damage evidence as a mitigating strategy, few have followed the outcomes in these cases. While defendants sometimes succeed in their claims for ineffective assistance of counsel for failing to investigate or introduce evidence of brain damage during capital sentencing, the question is what happens once the case is remanded. More often than not, the defendant is again sentenced to death on retrial or remand. The case today is one such example.
Mitigation, Capital Sentencing, PCP Use, Drug Use, Past Head Injuries
People v. Murtishaw, 247 P.3d 941 (Cal. 2011)
Defendant petitioned for a writ of habeas corpus after his convictions for first-degree murder were affirmed and his sentence of death on penalty retrial was affirmed. The petition was denied, and defendant appealed. The United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded for a second penalty retrial. On remand the defendant was again sentenced to death. Defendant appealed, and the Supreme Court of California in this case affirmed. During the penalty phase of the trial, the defendant presented expert testimony concerning his drug use (PCP), family history of mental disorders, and his combination of alcohol and PCP that the expert opined had a “synergistic effect” that could also explain defendant’s memory loss and aggressive behavior. The expert ultimately opined that, on the day of the shootings, defendant did not have “any … control over what he was doing, particularly given if PCP and alcohol [are] factored in.” A forensic psychologist also testified on defendant’s behalf about defendant’s family history of mental illness, and PCP induced psychosis that can persist for as long as two or three months after the drug is ingested. In addition to the family history of mental illness and his own substance abuse, defendant also had a history of head injuries from being hit over the head by a bottle of wine, falling off the back of a car, swimming into a pane of glass, and having a two-by-four board broken over his head. At least two of these incidents had rendered him unconscious, one of them for a day and a half. According to the expert, the effects of these head injuries may have enhanced the effect of any drugs that defendant took. In short, the expert believed defendant to have been mentally impaired at the time he committed the murders, because he was under the influence of alcohol and PCP and had suffered some brain damage as a result of his history of head injuries. After considering the defendants claims on appeal, including, inter alia his claims concerning the victim impact statements in the case and his claim that he was entitled to jury instructions that the jury had discretion to impose life without the possibility of parole even if the aggravating factors outweighed the mitigating ones, the court affirmed.