Death Sentence Is Reversed on Appeal

A federal appeals court in San Francisco on Tuesday reversed the death sentence of a Kern County man who has been on death row more than 20 years, saying his constitutional rights were grievously damaged by a judge’s erroneous jury instruction.

The U.S. 9th Circuit Court of Appeals ruled 3 to 0 that a Kern County judge gave tougher instructions than he should have to the jury that sentenced David L. Murtishaw, who had been convicted of killing three young movie makers in the Mojave Desert in April 1978.

However, the appeals court upheld the underlying conviction, which means Murtishaw faces at least life in prison.

The appellate judges sent the case back to a federal trial judge in Fresno, with instructions to vacate the death sentence and impose a sentence of life without possibility of parole unless the state promptly moves to resentence Murtishaw, 43.

Of the 599 individuals currently on death row in California, Murtishaw has been there longer than all but three.

The ruling Tuesday marks the second time that Murtishaw’s death sentence has been overturned.

In 1981, the state Supreme Court held that a judge had improperly admitted testimony by a psychiatrist predicting Murtishaw would commit violent acts in the future. That decision was cited by critics of the high court, which was led by then-Chief Justice Rose Elizabeth Bird, when voters ousted her and two of her colleagues in a 1986 election.

Nathan Barankin, a spokesman for the California attorney general’s office, said state prosecutors were reviewing the 9th Circuit ruling and would have no immediate comment.

Kern County Dist. Atty. Ed Jagels, a staunch supporter of capital punishment, said that his office was likely to ask the attorney general’s office to seek a rehearing by a larger panel of 9th Circuit judges or ask for a review by the U.S. Supreme Court, which earlier upheld the death sentence.

Murtishaw’s longtime appellate attorney, David H. Schwartz of San Francisco, said he was pleased that legal arguments he first raised in the state’s high court more than a decade ago had finally been accepted.

Murtishaw was convicted of a shooting attack on the students as they were making a movie for their cinema class in the desert near Mojave in Kern County.

Killed were Ingrid Etayo, James Henderson and Martha Soto. A fourth student, Lance Buflo, was wounded but escaped and summoned authorities. Murtishaw turned himself in to the police the day after the killings. His attorneys said later that he acted under the influence of alcohol and drugs.

In Tuesday’s ruling, the 9th Circuit ruled that Murtishaw was entitled to be sentenced under the California death penalty statute in effect at the time of his crime, not one enacted later in 1978.

The older statute gave juries greater discretion in sentencing decisions. It instructed jurors to “consider, take into account and be guided” by the aggravating and mitigating factors presented by the prosecution and defense.

The 1978 statute, which came in a voter initiative sponsored by state Sen. John Briggs (R-Fullerton), tells jurors that if the aggravating circumstances outweigh the mitigating circumstances, the jurors “shall” impose the death penalty.

In 1989, the California Supreme Court acknowledged that Murtishaw’s penalty retrial was mistakenly conducted under the law California voters passed in November 1978. But in a 4-3 decision, the state’s highest court rejected Murtishaw’s claim that using the wrong law had improperly limited the jury’s discretion in deciding whether to impose a death verdict or the alternative sentence of life without parole. Among those dissenting was Justice Stanley Mosk, who died last week.

The 9th Circuit rejected the California high court’s view that there was no significant functional difference in the discretion the 1977 and 1978 laws gave to the jury.

Appeals court Judge Procter Hug Jr. wrote that applying the 1978 statute to Murtishaw was subjecting him to ex post facto--in essence, altering the rules to his detriment after the fact.

Hug, joined by 9th Circuit judges Warren J. Ferguson and Kim McLane Wardlaw, also ruled that Murtishaw’s sentence must be reversed because the jury instruction was flatly wrong.

“The judge instructed the jury, ‘You must accept and follow the rules of law as I state them to you.’ Assuming the jury took this instruction seriously, it becomes even more likely that the jury was misled and sentenced Murtishaw to death on legally impermissible grounds,” Hug said.