Wednesday, October 4, 2023
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New Evidence Can’t Help Depraved Murder’s Case

(CN) - A man on death row who "slashed and stabbed" a woman to death in her bedroom, then "hacked out her womanhood," cannot appeal his sentence on the basis that his attorneys failed to investigate his mental health, the 9th Circuit ruled.

"The details of this crime are simply too atrocious for the exclusion of tentative, cumulative evidence to undermine confidence in the sentence," Chief Judge Alex Kozinski wrote for the court's majority.

A federal judge had ruled that Richard Leavitt was prejudiced by ineffective counsel because a new neurological examination showed "white matter hyperintensities (WMHs) in Leavitt's brain, which could indicate an organic cause of his personality disorder," according to the Pasadena-based federal appeals court.

On that basis, the lower court said Leavitt deserved a conditional writ of habeas.

Kozinski said Leavitt deserves no such relief.

"Given the exceptional depravity of this murder, it is unlikely that additional evidence of a brain abnormality would have made a difference," he wrote.

The ruling notes how Leavitt murdered Danette Elg with 15 strokes of a knife and butchered her body as she lay dying on her punctured waterbed. Leavitt's ex-wife had testified that she once saw Leavitt hack out the sexual organs of a female deer in the same manner to "play with."

"The state trial judge - who made the ultimate life or death decision - described the mitigating evidence as 'feathers on the scale' when weighed against the heinousness and brutality of Leavitt's crime," Kozinski wrote. "Reweighing all the evidence presented at the second sentencing hearing, the additional feather provided by the MRI evidence would not have been nearly enough to tip the scale in Leavitt's favor, so there was no prejudicial error."

Judge Stephen Reinhardt dissented, saying the particularly "horrendous" nature of the crime should indicate "that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband."Reinhardt called the neurological examination "powerful mitigating evidence."

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