Circuit Dissects ‘Only’ in Jury Instruction

DENVER (CN) — Though already serving a life sentence for killing an elderly cellmate, a supermax prisoner who attacked workers with a shank told the 10th Circuit on Thursday that his client’s conviction for the attacks should be reversed for an improper word in jury instructions.

Ishmael Petty, who killed his 71-year-old cellmate in a Louisiana prison, was transferred to Colorado’s supermax prison, ADX Florence, to serve out his life sentence.

On Sept. 11, 2013, Petty hid himself between the inner and outer doors of his cell and attacked two librarians and a case manager who were bringing him books.

Petty had created a makeshift suit of body armor out of cardboard. He used a homemade shank and hot sauce in the attack, and got ahold of two batons during the melee.

A jury convicted him of three counts of assault, resisting and impeding a federal employee using a dangerous weapon on July 14, 2015 after a two-day trial. The jury deliberated for 1 hour and 20 minutes after receiving instructions from U.S. District Judge Philip Brimmer, who sentenced Petty to an additional 36 years.

Petty’s attorney, Gail Johnson, told the 10th Circuit panel on Thursday that Brimmer’s instruction on reasonable doubt violated Petty’s right to due process.

“This instruction is unique,” Johnson said. “There is no other circuit court in this country that gives this instruction. It diminishes the burden of proof. We all know that ‘beyond a reasonable doubt’ is the highest standard of law.”

Johnson took issue with the second paragraph of the jury instruction, which used the word “only” in the line: “It is only required that the government’s proof exclude any ‘reasonable doubt’ concerning the defendant’s guilt.”

Johnson said the word “only” appeared to reduce the burden of proof, and trivialize the reasonable doubt standard.

“There needs to be something in the instructions that tells the jury … how strict and heavy a burden it is,” Johnson said.

“What is missing?” 10th District Judge Harris Hartz asked.

“We can have a semantic debate; it’s not a question of my interpretation being the only interpretation,” Johnson said. “We’re not required to show that this instruction confused the jury.”

Hartz replied: “It is [required] to show that the word ‘only’ is somehow misleading.”

Federal prosecutor Bishop Grewell spoke for only a minute and relinquished the rest of his time. He said that Johnson seemed to be proposing additional language in the jury instructions.

“For us to put in extra language, that would actually create more confusion,” Grewell told the court. Grewell also submitted a 16-page brief asking that the sentence be affirmed.

Hartz was joined on the panel by 10th Circuit Judge Jerome Holmes and Senior Judge Bobby Baldock.

Johnson is with Johnson, Brennan and Klein in Boulder.

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