Martin Kipp was convicted and sentenced to death in Orange County for a 1983 murder and attempted rape. In a separate, Los Angeles County case two years later, he was convicted and sentenced to death for the murder and rape of a different victim, also in 1983. The Supreme Court affirmed both death penalty judgments. (People v. Kipp (1998) 18 Cal.4th 349: People v. Kipp (2001) 26 Cal.4th 1100.) It also denied four state habeas corpus petitions.
This week, a divided Ninth Circuit panel overturned the Orange County death penalty, but the same panel unanimously refused habeas corpus relief for the Los Angeles sentence.
In the Orange County case, the prosecution presented evidence about the then-unadjudicated Los Angeles County rape and murder. Although applying a deferential standard of review, the Ninth Circuit majority said, “Because the state court made a crucial erroneous factual determination in linking the two crimes and apparently failed to consider the entire record, we conclude that the California Supreme Court’s decision finding no due process violation was based on an unreasonable determination of the facts.”
The dissent said the Supreme Court had produced a “reasoned opinion” and concluded “there is no support for the majority’s assumption that the state court failed to consider material evidence favorable to the defense.” The judge also disagreed that there was prejudice from admission of evidence of the other murder.
Earlier this month, a different Ninth Circuit panel vacated a different death sentence that the Supreme Court had affirmed. The Ninth Circuit usually refuses to overturn Supreme Court death penalty decisions.
[February 8, 2021, update: Alaina Lancaster in The Recorder — “‘Misguided Attack’: 14 Judges Join Dissent to 9th Circuit Denial to Rehear Death Penalty Case.” The dissents and concurrences regarding the en banc vote are here.]
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