Appeals Court Reverses Death Penalty in 1978 Murder Case

A federal appeals court on Friday reversed the death sentence of a man convicted of a 1978 San Jose murder, ruling that a violation of the defendant’s Miranda rights impermissibly affected the outcome.

In a 3-0 ruling, the U.S. 9th Circuit Court of Appeals in San Francisco ordered that David Luther Ghent Jr. be given a new sentencing hearing. The court upheld his murder conviction.

Ghent has been on San Quentin’s death row since Oct. 30, 1979, placing him eighth in seniority among the 607 inmates on death row in California.

The decision has particular resonance in the history of death penalty jurisprudence in California.

When the California Supreme Court upheld capital punishment for Ghent in 1987, it was the first time a death sentence had been confirmed by the newly aligned court, just months after Chief Justice Rose Elizabeth Bird and two associate justices had been voted off in the stormiest judicial election in state history.

The death penalty had been the key issue in that election as the court under Bird had reversed 64 of the 68 death sentences it reviewed during her nine years as chief justice.

Ghent was convicted of the murder and attempted rape of Patricia Bert, who was found dead in her home with 21 stab wounds in the chest and neck. Ghent had type B blood, the type found in sperm in the victim’s body. Bert and her husband had type A blood.

Ghent did not deny the killing, but claimed he acted without deliberation or premeditation. He said he recalled going to Bert’s home, and after she told him her husband was not home, Ghent asked for his work telephone number.

As she wrote the number on a pad, he said, “her robe fell open, revealing her naked body,” according to the 9th Circuit decision. “Ghent testified that his next memory was that he was standing over Mrs. Bert’s dead, nude body with a bloody knife in his hand. Mrs. Bert’s hands were tied behind her back,” Judge Stephen Reinhardt wrote.

In his first trial in August 1979, Ghent was convicted of first-degree murder and attempted rape, as well as the attempted rape of another woman the same day.

Ghent was tried under California’s 1977 death penalty law, which provided for a separate hearing to determine if there had been “special circumstances” that would warrant a jury to consider a death sentence. A special circumstances verdict required the jury to find that Ghent committed a willful, deliberate and premeditated murder and that this murder occurred during the commission of a felony such as rape or attempted rape.

The jury in Ghent’s case deadlocked on the special circumstances issue.

A month later, another jury was impaneled to consider the special circumstances issue. This jury concluded that the murder did occur during an attempted rape, and returned a death verdict.

On appeal, Ghent’s lawyers contended that the trial judge improperly admitted testimony on Ghent’s mental state from a psychiatrist who questioned him for the prosecution for 45 minutes. The defense lawyers contended that the interrogation occurred despite Ghent’s request for a lawyer, in violation of the U.S. Supreme Court’s 1966 Miranda decision, which obligates police to inform a suspect of his right to confer with a lawyer before being required to answer any questions.

Premeditation Angle Considered Crucial

At the special circumstance retrial, the state had to prove beyond a reasonable doubt that the murder had been willful, deliberate and premeditated, Reinhardt wrote. He emphasized that the trial prosecutor repeatedly characterized that as “the major issue in this case.”

The psychiatrist testified that Ghent “had the mental capacities at that time which were well within the range of normal reasonable thinking.” The doctor also said that Ghent had “the mental capacities to premeditate whatever he did.”

Reinhardt emphasized that this testimony was “the only direct evidence offered by the prosecution as to Ghent’s state of mind.”

Ghent’s trial attorney utilized two mental health experts, both of whom disagreed with the prosecution psychiatrist. Both testified that Ghent did not deliberately murder Mrs. Bert, and one said the murder was not premeditated.

In its ruling 15 years ago, the California Supreme Court said the prosecution testimony should not have been admitted because of the Miranda violation but concluded that it was a “harmless error” that could not have affected the outcome in light of other testimony about Ghent’s mental state.

The 9th Circuit panel sharply disagreed.

“The prosecutor not only used [the doctor’s] testimony to discredit the testimony and theories of the two defense expert witnesses, but also to attack Ghent’s credibility and truthfulness,” Reinhardt wrote in an opinion joined by Judges Michael D. Hawkins and Johnnie B. Rawlinson.

“Ghent’s credibility was a critical issue; Ghent himself testified regarding his memory loss surrounding the crimes,” Reinhardt wrote. The prosecutor introduced the doctor’s testimony by stating that the psychiatrist would tell the jury that Ghent is “a liar, he’s dishonest,” Reinhardt added.

“We find it highly significant that the prosecutor argued [to the jury] that one reason that [the psychiatrist’s] testimony was highly credible was that he had interviewed Ghent before Ghent was able to contact his lawyers.”

The prosecutors “made use of--and sought to benefit from--this unconstitutional attribute” of the psychiatrist’s actions, the veteran jurist wrote. “By doing so, it only emphasized and exacerbated the violation.” Consequently, the doctor’s testimony had a “substantial and injurious effect or influence in determining the jury’s verdict,” Reinhardt concluded.

Review of Decision May Be Requested

Ghent’s appellate lawyer, Douglas R. Young of San Francisco, said, “I am very pleased. The decision is right on the money.”

Hallye Jordan, a spokeswoman for the California attorney general’s office, said attorneys in the office were studying the decision. It is considered highly likely that the office will seek to have the ruling reviewed by either a larger panel of 9th Circuit judges or the U.S. Supreme Court.