Lawyer Can’t Override Client on Testimony, High Court Rules

The state Supreme Court, upholding two more death sentences, ruled Thursday that a defense attorney is not required to present favorable character evidence that the defendant does not want offered.

The justices rejected an appeal from convicted slayer Kenneth Burton Lang Jr. Initially, Lang had objected when his trial lawyer planned to call Lang’s grandmother as a defense witness. But after he was convicted and sentenced to death, Lang demanded a new trial because the attorney did not override Lang’s objection and call her to the stand.

Requiring lawyers to present mitigating evidence over the defendant’s objection would conflict with an attorney’s duty to his client and undermine the mutual trust essential for effective representation, the court said in an opinion by Justice Marcus M. Kaufman.

A “defendant cannot be permitted to claim that his counsel was deficient for acceding, against counsel’s own judgment, to the defendant’s insistent request that certain evidence not be presented,” Kaufman said.

The ruling came in one of two cases decided Thursday in which the court upheld verdicts of death for convicted killers. Since judicial conservatives gained a majority in 1987, the court has upheld 62 death sentences and reversed 24.

The justices unanimously affirmed the death penalty for Michael Wayne Hunter, 31, sentenced to the gas chamber for the December, 1981, shotgun slayings of his father and stepmother, Jay and Ruth Hunter, as they slept in their home in Pacifica.

But the court split 5 to 2 in affirming the capital sentence of Lang, 29, for the robbery-murder of Thurman Anderson, a Camarillo man who disappeared while hunting in Los Padres National Forest in August, 1983. He was found dead, shot once in the back and three times behind the ear.

Prosecutors charged that Lang, who was on parole from Oregon, killed the victim during a robbery. Lang claimed at trial he had shot Anderson in self-defense after the victim had made homosexual advances and, when rejected, appeared to threaten Lang with a rifle.

A Santa Barbara County jury found Lang guilty of murder and robbery. At that point, Lang’s trial attorney, in a move to persuade jurors not to return a death verdict, had planned to call the defendant’s grandmother to testify that Lang had been raised in an unstable home and that as a youth he had been shy, lonely and nonviolent.

But Lang objected, saying he did not want to place such a strain on his grandmother, and the attorney acceded to his request. The jury brought in a verdict of death.

On appeal, Lang said that the lawyer, in abiding by his wishes, had rendered “ineffective assistance of counsel” and undermined the validity of the verdict.

The high court majority turned down Lang’s contention, saying that requiring lawyers to override their clients’ wishes in such circumstances would encourage more defendants to represent themselves at trial--a risky choice the justices said would result in “a significant loss of legal protection” for defendants.

In dissent, Justice Stanley Mosk, joined by Justice Allen E. Broussard, argued that Lang was entitled to a new trial because his grandmother’s testimony could have “tipped the scales” in his favor. The jury, he noted, had deliberated three full days before returning a verdict of death.