Payton

concurring in part and dissenting in part:

Because I agree with the district court that Payton was deprived of his due process rights in the penalty phase of his trial, I respectfully dissent from Section II of the opinion.

This is a case of compound error involving a serious and repeated misrepresentation of law by the prosecutor. The initial error occurred when the prosecutor was permitted, in effect, to instruct the jury that it could not legally consider Payton’s mitigating evidence — evidence that the California appellate courts acknowledge was completely admissible. Bad enough that this should happen, but in a nearly complete abdication of its responsibility to properly explain the law to the jury, the state trial court not only failed to correct the misinformation, it permitted the prosecutor to argue his own interpretation of a sentencing factor as if it were the law. Because the prosecutor’s “instructions” told the jury it must ignore the only mitigation evidence that Payton offered, the decision whether to consider it made the difference, quite literally, between life and death. All this was done without ever correctly instructing the jurors that the evidence was…

Opinion by Judge RYMER; Partial Concurrence and Partial Dissent by Judge MICHAEL DALY HAWKINS

William Charles Payton was convicted in 1982 of the rape and murder of Pamela Montgomery, and the attempted murders of Patricia Pensinger and her ten-year-old *910 son, Blaine. He was sentenced to death. The California Supreme Court affirmed. People v. Payton, 3 Cal.4th 1050 , 13 Cal. Rptr.2d 526 , 839 P.2d 1035 (1992). It found that the prosecutor made an incorrect argument in the penalty phase about “factor (k),” 1 — that factor (k) does not refer to anything after the fact or later than the crime — but held that the error was harmless as it was not reasonably likely the jurors believed the law required them to disregard Payton’s mitigating evidence. Payton filed a petition for habeas corpus in federal district court, which granted the writ on his claim of prosecutorial misconduct. The district court held that the penalty phase was rendered fundamentally unfair by the prosecutor’s improper argument regarding the jury’s consideration of mitigating evidence. Accordingly, the sentence of death was vacated until the state granted a new penalty trial and, if no retrial was held, Payton was…