Legal Pingpong and a Condemned Man

William Charles Payton had left blood everywhere.

It was a crime scene to shock even the most hardened police investigators. A young woman dead, raped and then stabbed a dozen times. Another woman, who miraculously survived, stabbed more than 40 times. Her 10-year-old son, who also survived, stabbed 23 times.

That horror in a Garden Grove tenant house came 20 years ago this Friday. And there’s a chance that it might all be relived in a courtroom once again.

Payton, now 46, has Orange County’s longest death sentence appeal--just over 18 years. Right now, he’s got the upper hand.

A year ago this week, U.S. District Judge Manuel Real, reviewing a long laundry list of appeal issues presented by Payton’s attorneys, rejected all but one. But one is all it takes. The federal judge ordered a new penalty trial for Payton.

The judge found that the prosecutor, Deputy Dist. Atty. Mike Jacobs, had erred at Payton’s trial by telling jurors they shouldn’t consider Payton’s jailhouse conversion to God because it came after the murder. The state Supreme Court had previously ruled that Jacobs made a mistake but found it “harmless error.” The trial judge, that court said, had given elaborate instructions to jurors on what they could consider, including witnesses who testified to Payton’s jail ministry.

But Judge Real found it not so harmless.

Now the state attorney general’s office is vigorously fighting Real’s ruling. It formally filed its own appeal before the 9th Circuit Court of Appeals this month.

“I’m confident we will get this straightened out,” said Deputy Atty. Gen. Esteban Hernandez, who’s been assigned the Payton case for 10 years. “And if we do, I think Payton will finally be on the fast track toward execution.”

And if Payton wins? Prosecutor Jacobs said he will retry the penalty phase.

“This office is committed to Mr. Payton’s execution,” said Jacobs. “If it takes another 20 years, we will not give up on Mr. Payton.”

Have we reached a point where it’s not worth it? After all, Payton’s religious conversion would certainly be a major factor at any retrial. He’s had 18 years of ministering on death row.

Jacobs’ answer: “You wouldn’t ask that if you had seen the crime scene. It’s just the most horrid crime you can imagine. There is nothing Payton can do to mitigate that crime.”

On May 26, 1980, Patricia Pensinger had been up with her restless 10-year-old son, Blaine, at 4 a.m. While the boy went to sleep in her bed, she sat in the kitchen working a crossword puzzle.

Suddenly, in walked Payton, a former tenant, who had retained a house key. His car had broken down, he said, and he wondered if he could sleep on her couch.

A moment later, Pamela Montgomery, 21, entered the kitchen for a glass of water. She’d been living there only two days, while her young Navy husband was off on sea duty.

They all returned to bed soon after. Two hours later, Montgomery was dead. Pensinger felt two thuds to her back, according to her court testimony, and saw Payton standing above her with a butcher knife. Both she and her son were savagely attacked.

Payton then left for the kitchen, perhaps for a second knife. With a mother’s courage, Pensinger yelled at her son that she would keep Payton busy in the kitchen to give Blaine time to escape. That resulted in more stabbings to the landlady. But Blaine was stabbed again too as he tried to flee the house.

Payton finally returned to his own home to clean up, and told his wife (now his ex) he had to go on the run. He was arrested in Florida a month later.

Payton offered no defense at the guilt phase of his trial. At the penalty phase, he relied on testimony of other inmates, and a jail deputy, about his religious conversion. He was known at the Orange County Jail as “Bible Billy.”

Jacobs put on the witness stand a woman who had suffered a previous attack by Payton. Deputy Atty. Gen. Hernandez says it’s that woman who has remained in touch with him over the years, terrified that Payton might someday be released.

A few years ago, when I was interviewing two other death row inmates at San Quentin, Payton wandered by to say hello. He had declined my request for an interview but wanted to assure me it wasn’t personal; he was under orders from his attorneys.

In our brief exchange, Payton said he was so at peace with God that he was ready for whatever his fate might be. He knows he attacked the three, he said. But he’s fighting the death penalty because he has no memory of what happened, and that should have been brought out at his trial.

Payton’s original trial attorney, James Merwin, became the principal target of his appellate attorneys. They argued Merwin should have presented a post-traumatic stress disorder, or PTSD, defense based on Payton’s shocking combat experiences in Vietnam.

From Payton’s psychiatrist, H.R. Kormos: “Several times daily Mr. Payton went on helicopter missions. His unit encountered enemy activity routinely. . . . For many of these helicopter crews these operations amounted to suicide missions.”

And more: “While firing his machine gun Mr. Payton saw enemy tracer bullets coming right at him, and then he was knocked out by a round. He fully expected death, but when he came to, he discovered to his amazement that his flak jacket had stopped the bullet.”

Based in great part on Kormos’ report, the state Supreme Court ordered a hearing on the PTSD issue back in Orange County.

Payton suffered PTSD all right: Payton’s Tale a Sad Distortion. Apparently his religious conversion includes only nine of the Ten Commandments.

Military records, acknowledged in court documents, showed that Payton served only 22 days in Vietnam, and in a noncombat mechanic’s role. He washed out and was sent back to the U.S. because of drug problems.

I tried without luck the past two weeks to locate Blaine Pensinger, now 30. Jacobs and Hernandez aren’t sure where he is either. But you have to wonder, 20 years after the crime, how difficult it will be for him to return to the courtroom and go through it all once again.

Jerry Hicks’ column appears Monday and Thursday. Readers may reach Hicks by calling (714) 966-7789 or e-mail to jerry.hicks@latimes.com.

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The Payton Case

Here’s a look at Death Row inmate William Charles Payton’s 20-year serpentine route through the criminal justice system.

* May 26, 1980: Payton rapes and murders Pamela Montgomery, 21, at the Garden Grove home where she’s renting a room. He also repeatedly stabs the landlord and her 10-year-old son in another room, but they survive.

* Nov. 19, 1981: After just 90 minutes of deliberation, a jury returns a death verdict against Payton.

* March 9, 1982: Superior Court Judge Donald A. McCartin sentences Payton to death. A few days later he is sent to San Quentin’s Death Row, to await resolution of his appeal.

* July 20, 1983: Payton’s attorneys file their first brief with the state Supreme Court.

* 1983-1986: Both sides file several supplemental briefs with the high court.

* 1986: Payton’s attorneys file a petition with the state Supreme Court arguing that his trial attorney, James Merwin, should have used a Vietnam post-traumatic stress syndrome (PTSD) defense at the penalty phase of his trial.

* 1988-1989: The state Supreme Court appoints former appellate justice Robert Rickles to hear the PTSD issue. After a hearing process that takes over a year, Rickles finds that Payton fooled his own psychiatrist by making up Vietnam experiences. Payton actually served less than a month there in a non-combat role.

* Nov. 23, 1992: The state Supreme Court turns down Payton’s appeal.

* Jan. 10, 1994: The U.S. Supreme Court turns down Payton’s appeal.

* April 3, 1996: Payton files a new petition in U.S. District Court.

* Aug. 2, 1996: U.S. District Court sends Payton’s case back to the state court system to resolve various issues.

* Oct. 15, 1996: Payton refiles before the state Supreme Court.

* Dec. 12, 1997: The state Supreme Court again denies Payton’s appeal.

* Feb. 2, 1998: Payton files a new petition in U.S. District Court.

* Nov. 23, 1998: U.S. District Court agrees to a hearing on Payton’s lawyers claim of prosecutorial error during closing arguments.

* May 24, 1999: U.S. District Court Judge Manuel Real orders a new penalty trial for Payton based on his claim of prosecutorial error.

* Aug. 2, 1999: State attorney general’s office turned down in its attempt to get Real’s order overturned by U.S. District Court.

* Dec. 27, 1999: State attorney general’s office files notice it will appeal Real’s decision to the U.S. 9th Circuit Court of Appeals.

* May 5, 2000: State attorney general formally appeals to the 9th Circuit.

* At present: The 9th Circuit is awaiting Payton’s lawyers’ response to the attorney general’s appeal.

Source: California Attorney General’s Office