Rehearing Denial Spurs Harrowing Warning

     (CN) – A rift in the 9th Circuit over “causal nexus” review may not be fixed in time to save the life of a man on death row in Arizona, but it must be fixed, Chief Judge Alex Kozinski and a dozen other judges warned Thursday.
     The federal appeals court in San Francisco denied Robert Poyson’s petition for habeas corpus relief in March. Poyson was convicted and sentenced to death in 1998 for brutally killing three people who had offered the homeless 19-year-old a place to stay in rural Arizona.
     Poyson argued in his federal petition that state appellate courts had improperly refused to consider his history of substance abuse as a mitigating factor for sentencing after applying an unconstitutional causal nexus test.
     The 9th Circuit found on appeal that the record of the Arizona Supreme Court’s ruling on the case did “not reveal whether the court considered the absence of a causal nexus as a permissible weighing mechanism … or as an unconstitutional screening mechanism.” Because such ambiguity generally precludes habeas relief, the three-judge appeals panel denied the petition.
     That prompted both a vigorous dissent from Judge Sidney Thomas and a petition for a full-court review from Poyson.
     In his dissent, Thomas argued that the Arizona court had indeed “unconstitutionally excluded mitigating evidence from its consideration because the evidence was not causally related to the crimes.” That exclusion clearly deprived Poyson his “right to an individualized capital sentencing determination under the Eighth and Fourteenth Amendments,” Thomas wrote.
     “In short,” he added, “if there is any legitimate reason to believe that a court has excluded mitigating evidence from consideration, we should grant habeas relief so that a proper weighing of aggravating and mitigating factors can occur.”
     The 9th Circuit denied Poyson’s petition for new hearing Thursday, causing Chief Judge Kozinski to issue his stern warning.
     “Just how obvious does a state court’s constitutional error have to be when a man’s life is on the line?,” Kozinski wrote in a dissent joined by Judge Thomas as well as Judges Harry Pregerson, Stephen Reinhardt, M. Margaret McKeown, Kim McLane Wardlaw, W. Fletcher, Richard Paez, Marsha Berzon, Mary Murguia, Morgan Christen and Paul Watford.
     Adopting Thomas’s previous dissent “chapter and verse,” Kozinski argued that the circuit must come to terms with the casual nexus issue soon because “there are many more cases in the pipeline where state courts in our circuit applied a causal nexus test before affirming a sentence of death.”
     “We can’t long continue down the path forged by the majority, which forces panels to choose between two materially different standards of review in causal nexus cases: the newly minted ‘clear indication’ standard and our traditional approach of scrutinizing the record and asking whether it ‘appears’ that a constitutional violation occurred,” he wrote.
     Kozinski added that, “we must suture this fissure in our circuit law, and soon. Tragically for Robert Poyson, when we do so, it will come too late to save him. But come it will.”

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