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High Court Voids Killer’s Death Penalty : Rules Jurors Were Misled Concerning Responsibility for Verdict

Times Staff Writer

The California Supreme Court on Thursday overturned the death sentence imposed on the killer of a store manager, ruling that jurors had been misled to think they need not take personal responsibility for their verdict.

The justices unanimously upheld the conviction but reversed the capital sentence of Lynn Bernard Milner for the 1980 murder of Charles Street, 21, in a robbery at a Sunnyvale clothing store where Milner had previously worked.

Jurors weighing the death penalty were improperly told numerous times by the prosecution that they were to simply apply the law, regardless of their personal conclusions on whether Milner should live or die, the court said.

Among other things, the prosecutor told jurors that “if you try to do what is in your own mind, justice . . . you’re taking upon your shoulders a burden that the law does not require.”

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The justices based their decision largely on a 1985 U.S. Supreme Court ruling requiring that jurors personally recognize that they must bear “the enormity of the responsibility” involved in considering the death penalty.

Justice Edward A. Panelli, writing for the state high court, said that jurors in Milner’s case were wrongly told they were to mechanically weigh the factors favoring death and factors favoring life without parole, and then, if “aggravation outweighed mitigation,” the verdict was to be death.

Neither the judge’s instructions nor the defense counsel’s arguments overcame the prosecution’s improper contention that jurors did not have to “shoulder the burden” of personal responsibility, Panelli said.

“In essence, the jurors were told that the ‘awesome responsibility’ for the life and death determination did not rest with them,” he said.

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The ruling marked the sixth time the court has overturned a death sentence in the 21 capital cases decided since a new, conservative majority emerged after the 1986 election defeat of Chief Justice Rose Elizabeth Bird and two other court members.

James E. McCready, a San Francisco attorney who represented Milner, welcomed the ruling.

“I’d been quite concerned the way this court has been knocking out issue after issue” that could help reverse a death sentence, he said.

McCready said he was disappointed that the court upheld Milner’s conviction and said it was possible that aspect of the ruling would be appealed to the U.S. Supreme Court.

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Neither state or local prosecutors involved in the case were available for comment.

Milner, then 19, was charged with entering the clothing store shortly before closing and stabbing Street to death while attempting to make off with the day’s receipts. After Milner was convicted, the prosecution sought the death penalty for a murder committed during the course of the robbery, a felony.

Santa Clara County Deputy Dist. Atty. John Schon stressed to jurors that the law required them to weigh certain factors of the case--the circumstances of the crime, the record of the defendant and other factors--and if aggravating factors outweighed mitigating factors, return a verdict of death.

“If you get away from these factors and interpose your own personal feelings or prejudices concerning this, you are truly stepping outside of the law and taking personal responsibility for your decision,” Schon said.

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Similarly, the jury was instructed by the judge that if aggravating factors outweighed mitigating factors, it “shall” impose the death penalty.

The state Supreme Court later concluded in another case that such an instruction, required under a 1978 death penalty initiative, was permissible only if the jury knew that it was free to assign its own value to each factor and should return the death penalty only if “appropriate.”

In Thursday’s decision, the justices found that while no one statement by the prosecution was enough to mislead the jury, the collective impact of all the prosecution’s statements, the instructions by the judge and lack of contrary arguments by the defense all combined to require that a new penalty trial be held for Milner.

In this case, as in the Mississippi case decided by the U.S. Supreme Court in 1985, the prosecutor’s argument gave the jury a view of its role that was “fundamentally incompatible” with the constitutional need for heightened reliability in a verdict of death, the justices said.

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