High court restores man’s death sentence

Times Staff Writer

Reversing the U.S. 9th Circuit Court of Appeals in another murder case, the Supreme Court on Monday restored a death sentence for a Washington state man who abducted, tortured and killed a young woman near Seattle.

The murderer, Cal Brown, was captured in Palm Springs after he abducted another woman and slit her throat in an airport hotel. She was able to call the hotel desk when Brown left the room. Police arrested Brown in the hotel parking lot, and he confessed to both crimes.

In 1993, he was convicted and sentenced to death by a Seattle jury. But the 9th Circuit overturned his death sentence last year on the grounds that the trial judge had wrongly excluded a juror who expressed qualms about capital punishment.

By a 5-4 vote, the high court upheld the decision of the trial judge and said the 9th Circuit erred by intervening.


“It is not for us to second guess the determination” of the trial judge over whether a potential juror is willing to follow the law, Justice Anthony M. Kennedy said.

He said the prosecutor and the judge had ample reason for excusing the man, referred to as “Juror Z.” When questioned, the juror had said the death penalty was appropriate only when the murderer might be released and would kill again. In Washington, as in California, that was not a possibility in such a case. An aggravated murder conviction would bring a sentence of either death or life in prison without a chance for parole.

The prosecutor asked to have Juror Z excluded because his comments suggested he would reject the death penalty for Brown. The defense lawyer said: “We have no objection.” That led to the reversal of Brown’s death sentence more than 12 years later by the San Francisco-based appeals court.

The three-judge panel that reversed Brown’s death sentence consisted of Judges Alex Kozinski of Pasadena, a conservative, and two liberals, Stephen Reinhardt of Los Angeles and Marsha S. Berzon of San Francisco.

Kozinski said Juror Z had “outlined a balanced and thoughtful position” on the death penalty. “Most importantly, he promised he would ‘follow the law’ without reservation,” he said.

On Monday, the Supreme Court once again was sharply split along conservative-liberal lines.

Justice John Paul Stevens delivered a strong dissent in the courtroom. By allowing prosecutors to exclude jurors who have qualms about capital punishment, the court will encourage the formation of juries that are “unfairly biased in favor of the death penalty,” he said.

Stevens said jurors who pledge to follow the law in death penalty cases should be seated, even if they express doubts about the use of this ultimate punishment. “Millions of Americans oppose the death penalty,” and juries are supposed to represent a “cross section” of the community, he argued.


Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined his dissent in the case of Uttecht vs. Brown.

In his opinion reversing Kozinski and the 9th Circuit, Kennedy agreed capital defendants have “the right to be sentenced by an impartial jury.”

Such a jury can include those who have “scruples against the death penalty,” he added, but they must be ready to follow the law. In this case, despite what Juror Z said, he was “substantially impaired” in doing just that, Kennedy said.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Kennedy.


Monday’s ruling was the fourth this term to overturn the 9th Circuit in a murder case.

In November, the court restored a death sentence for a Central Valley man who robbed and fatally clubbed a young woman in 1982. The 9th Circuit had reversed his sentence on the grounds that jurors might not have weighed the defendant’s religious conversion after his arrest.

In December, the court restored a murder conviction for a man who shot and killed the fiance of his estranged wife in San Jose. The 9th Circuit had reversed the conviction because the victim’s family had worn a small, button-size photo of him during the opening days of the trial.

In May, the court restored the death penalty for a two-time murderer in Arizona who told the sentencing judge he did not want mitigating evidence presented on his behalf. The 9th Circuit had reversed his death sentence because his lawyer failed to present evidence of his client’s brain disorder.