updated 11/10/2004 5:51:10 PM ET 2004-11-10T22:51:10

The Supreme Court on Wednesday considered whether a jury that sentenced a convicted killer to death had properly taken into account his religious conversion, which a prosecutor incorrectly contended was irrelevant.

In a 24-year-old case, most of the justices seemed to agree that the California prosecutor was wrong to make that assertion about William Payton and that a trial judge should have corrected the prosecutor. But the justices were divided over whether the errors made a difference in sentencing.

“The prosecutor stands there and twice said, ‘You can’t legally consider this evidence,’ and the judge never corrects it. Why isn’t this a reasonable likelihood of error?” Justice David H. Souter said.

But Justice Stephen G. Breyer said justices can overturn the death sentence only if it was unreasonable given all the evidence presented at trial. “That’s the harder question for me,” he said.

1980 murder
The case involves California’s appeal of a lower court ruling setting aside Payton’s sentence in the 1980 rape and stabbing death of Pamela Montgomery of Garden Grove, Calif.

In trying to sway jurors to spare Payton’s life, defense lawyers said Payton had made a sincere commitment to God after committing the crimes and was a model inmate who could help others through a prison ministry.

But prosecutors at trial wrongly said those mitigating circumstances were not relevant, a federal appeals court later ruled. Over Payton’s objections, the judge only issued an instruction that stated jurors could consider “any other circumstance which extenuates the gravity of the crime.” He did not specify what.

Jury instruction not enough, appellate court rules
In a sharply divided opinion, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that the jury instruction was inadequate to counter the harmful effect of prosecutors’ false statements. It overturned a California Supreme Court ruling upholding the sentence.

In so doing, the appeals court rejected prosecutors’ contention that the misstatements were not overly prejudicial because jurors had just heard daylong testimony from eight witnesses attesting to Payton’s religious conversion.

Currently, there are more than 600 inmates on death row in California, although the state has executed only 10 people since 1992 due to protracted legal challenges and concerns about fairness of the system.

Payton’s lawyer, Dean R. Gits, said about 70 cases involve death row inmates who claim that mitigating factors after a crime — such as a religious conversion — were not properly considered because of inadequate jury instructions. Payton’s case is more egregious because prosecutors made false statements, he said.

Andrea N. Cortina, California’s deputy attorney general, argued that it was not the Supreme Court’s role to overturn a state court if its judgment was reasonable. The state court acted reasonably because it was not clear the misstatements influenced jurors because they had just heard lengthy testimony about Payton’s conversion.

“Trials are not error-free. We wish they were, but they’re not,” Cortina said.

The case is Brown v. Payton, 03-1039.

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