In McDermott v. Johnson, the Ninth Circuit last week affirmed a district court’s denial of habeas corpus relief for a prisoner sentenced to death for a 1985 murder-by-hire. The California Supreme Court unanimously affirmed her death penalty on direct, automatic appeal. (People v. McDermott (2002) 28 Cal.4th 946.) It also denied her state habeas corpus petitions. (Here, here, and here.)
The federal panel’s opinion highlights what it said is “the high bar to relief” that a condemned inmate must overcome when challenging a state death penalty in federal court.
McDermott contended the prosecutor’s referencing the Bible during jury argument required overturning her death sentence. On appeal, the California Supreme Court held McDermott waived the argument by not objecting at trial and it deferred to a state habeas corpus proceeding her claim that her attorney was ineffective by failing to object. The court then denied the ineffective-assistance claim without opinion — but “on the merits” — when the claim was raised in a habeas corpus petition.
At odds with the Supreme Court, the Ninth Circuit stated, “we have no doubt that the prosecutor’s references to quotations of Biblical verses during closing arguments were unconstitutional prosecutorial misconduct, and prejudiced McDermott.” It nonetheless declined to grant habeas relief because, under the governing federal statute’s “extremely deferential standard, the [California Supreme Court’s] denial of McDermott’s prosecutorial misconduct claim was not contrary to, or an unreasonable application of, [U.S.] Supreme Court precedent.”
The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.
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