NEW: 9th Circuit Stands By Earlier Decision Giving Arizona Death Row Inmate A New Sentencing; Defense Attorney Messed Up

An inmate on Arizona's death row should receive a new sentencing hearing because his defense counsel did not properly present possible mitigating factors. That was the decision earlier this year by a 9th Circuit panel, and the full 9th Circuit bench today declined to reconsider the opinion.

George Kayer filed a habeas corpus petition with the federal courts after the Arizona Supreme Court reviewed and upheld the death sentence. The District Court denied Kayer's petition, but a split appeals panel reversed. Arizona asked the full court to hear the case, but the request for en banc only garnered 12 votes, short of the necessary majority.

Kayer killed his friend, Delbert Haas, in the desert in order to rob him. His girlfriend turned him in to security at a Las Vegas hotel several days later. 

His trial attorneys did minimal and last-minute work developing Kayer's mental illness history. The trial judge did not believe that that prejudiced the defendant in the sentencing phase, but the 9th Circuit found that that was "objectively unreasonable".

"Counsels’ failure to prepare for the penalty phase hearing was egregious, and the mitigation evidence presented at the hearing was pathetically inadequate. We also held that the no-prejudice decision by the state PCR judge was an objectively unreasonable decision within the meaning of AEDPA."

No word yet on whether the Attorney General's Office will appeal the decision to the U.S. Supreme Court or will move forward with the re-sentencing.

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