Two Votes Short in Arizona Death Case

Robert A. Poyson needed just 14 appellate judges to vote to rehear his appeal to spare him from execution in Arizona.  He got 12 votes.

A dozen judges of the 9th U.S. Circuit Court of Appeals this week signed a dissent from the full 27-judge court’s refusal to rehear Poyson’s case.

“Just how obvious does a state court’s constitutional error have to be when a man’s life is on the line,” asked Chief Judge Alex Kozinski, who wrote the dissent.

According to the three-judge panel majority that ruled in March, “indisputably obvious, which is ‘beyond a reasonable doubt’ stood on its head,’” he wrote.

Poyson was convicted of a 1998 triple murder in Kingman, Arizona, committed when he was 19-years-old and homeless.

Poyson was convicted and sentenced to death.  During the penalty hearing, the defense presented a history of Poyson’s mental health issues and personality disorders as a result of his mother’s heavy drug use while she was pregnant with him.  In addition, Poyson was physically and sexually abused by a stepfather.  Poyson also used drugs and alcohol himself.

The trial judge considered the mental disorders but found them “not causally related to the murders” so did not consider them mitigating factors, weighing against a death sentence.

The judge also found his abusive childhood got no mitigation weight because they too were not “causally connected to the murders.”

The defense argued that it was unconstitutional for Arizona courts to apply a “causal nexus test to mitigating evidence.”  The defense said this violated his eighth and fourteenth amendment rights to individualized sentencing.

The judge rejected the arguments and sentenced Poyson to die.

In the March appellate decision upholding the sentence, Judge Raymond Fisher said, “We recognize the possibility that the Arizona Supreme Court applied an unconstitutional causal nexus test.  The record, however, contains no clear indication that the court did so,” he wrote.  “We may not presume a constitutional violation from an ambiguous record,” he said.

He was joined by Judge Sandra Ikuta.


In dissent, Judge Sidney Thomas said the Arizona Supreme Court, which reviewed the case earlier, had unconstitutionally excluded mitigating evidence from its consideration because the evidence was not linked as one of the causes of the murders.

“As a result, Poyson was deprived of his right to an individualized capital sentencing determination under the eighth and fourteenth amendments,” he said.

His dissent was adopted by Kozinski and the 11 dissenters from the denial of reconsideration by the full court.

They joined in Thomas’ position that the ruling flies in the face of U.S. Supreme Court precedent that mitigating evidence can not be categorically screened out before it is weighed in combination with other relevant sentencing evidence.

Signing on with Thomas and Kozinski to give Poyson a rehearing were Judges: Harry Pregerson, Stephen Reinhardt, Margaret McKeown, Kim Wardlaw, William Fletcher, Richard Paez, Marsha Berzon, Mary Murguia, Morgan Christen and Paul Watford.

Poyson needed two more votes for a majority.  His case will now go to the U.S> Supreme Court.

Case:  Poyson v. Ryan, No. 10-99005


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