En Banc Court Supports Execution for Ariz. Killer

(CN) — The en banc Ninth Circuit upheld the death sentence Friday for a possibly brain-damaged man who killed two in a drug deal gone bad.

Eric Mann murdered Richard Alberts and Ramon Bazurto in Tucson, Arizona, over $20,000 worth of cocaine.

Though Mann had evaded authorities for years after the 1989 crime, a jury convicted him in 1994 after a former girlfriend testified against him in exchange for immunity.

On death row, Mann courted favor from a divided three-judge panel of the Ninth Circuit in 2014. The court found that Mann deserved a new sentence because his defense team had failed to investigate whether Mann was brain damaged at the time of the murders.

Mann could have sustained the injuries when he rolled his Jeep in 1985, killing two passengers.

Karen Miller, the girlfriend who testified against Mann in 1994, told the jury Mann had become moody and depressed after the accident and resorted to selling drugs to pay for his hospital bills.

Though Mann's attorneys knew about their client's concussion from the 1985 traffic accident, they "made no effort to obtain medical records or otherwise investigate whether Mann had ever suffered from organic brain damage," the 2014 habeas reversal had said.

"In declining to pursue that lead, counsel ignored a death penalty expert at the Phoenix Capital Representation Project who advised him to seek neuropsychological testing to detect the existence of organic brain damage, and he disregarded the fact that Arizona courts at the time placed 'significant weight' on brain injuries as mitigating evidence."

The Ninth Circuit agreed to reconsider the case en banc, however, and sided with the state Friday after a January hearing in Pasadena, California.

Writing for the eight-member majority, U.S. Circuit Judge Richard Clifton said Mann still would not have prevented a death sentence if the sentencing court had weighed new and old evidence of the effect the car crash had on Mann.

"Even if the accident had an effect on Mann's personality, it hardly changed an altar boy into a callous criminal," Clifton wrote. "The presentence report submitted by the probation department attached a long criminal history record that included 14 offenses predating Mann's 1985 car accident."

Mann's criminal history may have begun with minor crimes, but it escalated in the years before the crash to burglary and attempted burglary while using a gun.

"Given this history, it was not unreasonable for the state post-conviction court to conclude that the accident had no significant effect on Mann's behavior. He had set on a path of violent crime long before the accident occurred," the 37-page lead opinion states. "Nor was it unreasonable for the court to conclude that additional evidence of Mann's good character was not enough to outweigh the various aggravating factors that the sentencing court had found."

U.S. Circuit Judge Sidney Thomas had penned the 2014 reversal and echoed the points of that opinion in a dissent Friday.

Thomas said Mann should be granted relief for his claim of ineffective assistance of counsel at sentencing, weighting the evidence presented by Mann's post-conviction neurological expert, Dr. James Comer.

"Dr. Comer effectively ruled out substance abuse as the cause of Mann's cognitive deficits because the 'cluster of weak test performances that [Mann] demonstrated tended to occur almost entirely on tests that had been well-documented to be sensitive to the subtle effects of head injury,'" Thomas wrote. "To further support that conclusion, both Mann and Miller presented evidence that it was only after the 1985 accident that Mann began using and selling cocaine, a conclusion consistent with Mann's presentence report."

Thomas said the court relief on flawed psychological testimony from an expert who "was not provided evidence indicating that Mann may have received a head injury and therefore lacked 'the information necessary to make an accurate evaluation' of Mann's neuropsychological health."

U.S. Circuit Judge Morgan Christen partially dissented as well but ultimately found Mann did not deserve relief.

"In the end, I am not persuaded that petitioner met his burden of establishing that the errors he complains of prejudiced the outcome of his sentencing," Christen wrote, joined by U.S. Circuit Judge Marsha Berzon.

Mann was represented by Cary Sandman with the Federal Public Defender's Office in Tucson. Sandman did not return a request for comment, and it is unclear whether Mann will appeal.

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