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By Ray Stern
By New Times
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By Stephen Lemons
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Hall -- whose sole legal focus is appealing death-penalty convictions -- said she understood how Comer's destructive experiences at the Folsom prison had affected him: "The story that needs to be told in your case is that society has to share in the responsibility for the death of the man you were convicted of killing. That society helped pull the trigger that night."
Even that overwrought plea didn't work. Comer remained determined to die by lethal injection.
Volunteering for execution isn't as rare as it might seem. Since the U.S. Supreme Court ruled in 1976 that capital punishment is constitutional, more than 90 convicted murderers have asked to be put to death -- including 60 since 1996.
When the Ninth Circuit received Comer's letter, it already had been considering his criminal appeal -- the one written by Peter Eckerstrom. The court expressed concerns about Comer's mental state, and how that may intersect with his life on SMU II. That took on added significance when Judge Warren Ferguson noted that the inmate's request to die came amid "serious questions about the constitutionality of his conviction and sentence."
That comment strongly suggests the panel -- known in legal circles for its civil libertarian bent -- is considering overturning Comer's death sentence, maybe even his murder conviction. But the court in June 2000 put the Comer case on hold until it hears from Judge Silver on two critical issues:
If Comer is legally competent to waive his appeals.
If his decision to speed up his execution truly is voluntary.
In late 2000, Silver appointed Phoenix attorneys Mike Kimerer and Holly Gieszl to represent Comer's desire to expedite his execution. Kimerer is one of Arizona's most respected criminal-defense attorneys. Gieszl mostly does health-care litigation, not criminal-defense work.
But she slowly won Comer's confidence -- no small feat -- by visiting him almost every week at SMU II, sorting out his complex, often mercurial moods, listening to his point of view.
Kimerer and Gieszl say they're anti-death penalty, but have had no problem pursuing their unorthodox mission -- to help Comer convince the courts that he should be allowed to die by lethal injection.
On the other side, habeas attorney Peter Eckerstrom felt compelled to explain that the fact he and Julie Hall also are strongly opposed to the death penalty has little to do with their trying to stave off Comer's execution.
"While it is true that we possess a moral opposition to the premeditated and unnecessary taking of any human life, those personal views are entirely irrelevant to these proceedings," he wrote Judge Silver last November. "We have an overriding duty to represent the interests of our client. Our view of the phenomenon of the death row volunteer is that it represents a form of suicide that we would never endorse, encourage or assist."
Even though Comer doesn't want them as his legal advocates, Eckerstrom indicates he and Hall will resign from the case only if Silver agrees to let the inmate drop his appeals and the Ninth Circuit upholds her ruling.
To bolster their contention that Comer is not mentally competent to decide to die, Eckerstrom and Hall hired California super-max expert Terry Kupers to examine Comer and his cell at SMU II.
The California psychiatrist concluded that Comer has been rendered incompetent. He wrote in a report to Silver that Comer's thinking stems from a deep depression and other psychological maladies caused by the extremely harsh living conditions.
"I have never seen a cell that is more physically alienating and isolating than the . . . cell where Mr. Comer has been confined for years," Kupers wrote, after spending about 20 hours with Comer over several sessions. "The conditions of confinement where Mr. Comer presently resides are far beneath what human decency requires, and as a result these conditions are aggravating the mental disorder that compels Mr. Comer's rule-breaking and threatening behavior. In these difficult straits, and as result of a mental disorder, Mr. Comer is not able to make an intelligent and rational decision to waive his appeals and be executed."
Kupers also contends that Comer suffers from posttraumatic stress syndrome, from the time he spent in solitary confinement 20 years ago at the prison in Folsom.
"Mr. Comer is very proud of the fact that he has not 'gone off his rocker' after 14 years in isolated confinement," he wrote. "And I concur -- that is an impressive accomplishment.
"A significant proportion of reasonable adults, were they subjected to the harsh conditions and treatment that Mr. Comer has endured for so many years, would certainly have lost their minds. But the absence of frank psychosis and being free of mental disorder are two very different things."
Judge Silver appointed North Carolina's Dr. Sally Johnson to also examine Comer. Johnson is a government psychiatrist who has conducted forensic examinations of such superstar criminals as Theodore "The Unabomber" Kaczynski, televangelist Jim Bakker, and would-be presidential assassin John Hinckley Jr. (Hinckley once wrote her a poem, titled "A Poem for My Favorite Pregnant Psychiatrist.")
Johnson spent 52 hours interviewing Comer before concluding he is competent to waive his criminal appeals. She agreed with Kupers that the conditions of Comer's incarceration are extremely severe, probably overly so. But Johnson said the super-max hasn't made Comer incapable of making a rational decision to die.