Court Overturns a Death Sentence : Rules That Prosecutor’s Remarks to Jury Were Improper

Times Staff Writer

A narrowly split state Supreme Court on Thursday overturned the death sentence of a convicted Riverside killer, ruling that the prosecutor improperly told jurors they should set aside their personal beliefs and let the law alone decide whether the defendant should live or die.

The court unanimously upheld the conviction but, on a 4-3 vote, allowed a new penalty trial for Lee Perry Farmer Jr., 43, found guilty in the fatal shooting of Erich Schmidt-Till during a burglary in June, 1981.

The justices held that the prosecutor made “highly misleading” statements indicating that the voters and the law had effectively determined Farmer’s fate and that the personal views of the jurors were irrelevant in returning a verdict.

“It is simply not true that such concerns as the value of human life and the personal morality of the jurors are not to be considered by a jury deciding whether the defendant should live or die,” Justice Stanley Mosk wrote for the court.


The reversal was the 18th by the court in 65 capital rulings issued since 1987 under Chief Justice Malcolm M. Lucas.

And it marked a rare split in such cases among the five court members appointed by Gov. George Deukmejian. Only once before had the Lucas court not been unanimous in overturning a death sentence.

Mosk, an appointee of former Gov. Edmund G. (Pat) Brown, was joined in the lead opinion by Justice Allen E. Broussard, an appointee of former Gov. Edmund G. Brown Jr., and Justice John A. Arguelles. Justice David N. Eagleson filed a separate concurring opinion, providing the necessary fourth vote to overturn the death sentence.

In dissent, Justice Edward A. Panelli, joined by Lucas and Justice Marcus M. Kaufman, said the sentence should be upheld, because the prosecutor had made other remarks correctly stating that jurors were to act “fairly and justly” and could exercise “mercy” by returning a verdict of life in prison without parole instead of death.

Victim Shot 3 Times

Farmer was accused of joining with another man to break into Schmidt-Till’s apartment and take jewelry, stereo equipment and other items to satisfy a drug-related debt of the victim’s roommate. In a later re-entry, Schmidt-Till was shot three times, but before he died he was able to give police a description of his assailant. That information led to the arrest of Farmer.

At trial, Farmer denied he had shot the victim. But after he was convicted he said during the penalty phase of the case that he would prefer a death sentence to spending his remaining days “in the jungle of prison life.”

Riverside Deputy Dist. Atty. Gary B. Tranbarger told jurors that, while they were to weigh the aggravating factors in the case against any factors favoring leniency for Farmer, the “great debate” about the death penalty had been settled by the voters. The questions of values and morality that were relevant in the election were not to be considered in the verdict, he said.

“Whether or not Mr. Farmer should live or die was decided by the voters in this state when they passed this (capital punishment) law,” Tranbarger said. “They decided who lives and who dies. You decide does aggravating outweigh mitigating? That is your job. That is all you decide. The law does the rest. It is not you. You are unfortunately picked here to do that which has to be done, decide whether aggravating outweighs mitigating. You do not decide life or death. The law does that.”

In Thursday’s decision, Mosk concluded that the prosecutor’s statements violated rulings by the U.S. Supreme Court and the state high court by seeming to relieve jurors of personal responsibility in deciding life or death.

”. . . The prosecutor went to considerable lengths . . . to persuade the jurors that the responsibility for determining the appropriateness of putting this defendant to death rested not on each of them personally but on ‘the law,’ ” Mosk wrote.

Neither the judge nor defense counsel corrected the prosecutor’s “highly misleading” statements, Mosk said.

“Instead,” he said, “the concluding message conveyed to the jurors was that they were bound to exercise discretion in weighing the aggravating and mitigating factors, but need not and should not, if they were to follow the law, exercise discretion in deciding whether the defendant should live or die.”