Dead Man Talkin'

A murderer tells New Times that he wants desperately to die, but a U.S. appeals court won't let the state kill him

"You know, prison and the death penalty, they may not deter a guy from a life of crime," Robert Comer writes, "but I promise you this. Sentence a guy to one year of dealing with anti-death penalty fanatics and the courts will cause a guy to turn over a new leaf!"

Comer sent a letter to New Times on September 21 from his uniquely isolated and unpleasant vantage point — a one-man cell on death row, inside Special Management Unit II at the Arizona State Prison in Florence. The letter came a week after the Ninth Circuit Court of Appeals voted 2-1 to order Comer's re-sentencing because of the manner in which a Maricopa County judge ordered him to the death house back in 1988.

The opinion has caused shock waves in legal circles nationwide, and it normally would have been good news to an inmate in Comer's shoes.

Robert Comer
Robert Comer
Robert Comer when he was facing charges for murder and rape.
Robert Comer when he was facing charges for murder and rape.

It wasn't.

For almost a decade, Comer, 49, has been fighting to end all of his appeals so that the state of Arizona might actually execute him.

"I ended a whole bunch of innocent people's lives," Comer told federal judge Roslyn Silver in a memorable hearing at the downtown Phoenix courthouse in early 2002. "I was sentenced to death. That's the legal sentence. I pulled my appeal. I owe that to them. I owe it to myself, man. I was totally wrong."

Naturally, prosecutors have been on his side in this legal battle.

His federal appellate lawyers decidedly have not.

Over Comer's continual protests, those habeas attorneys argued that allegedly serious legal errors have merited, at the least, a new sentencing hearing. And they also have claimed for years that he is too sick mentally (because, in part, of his long incarceration in a harsh super-max prison) to make rational decisions about dropping his appeals.

The Ninth Circuit didn't buy the mental-illness claims in its recent ruling, and unanimously agreed with Judge Silver that Comer is fully capable of discontinuing his appeals.

So, a layman might ask, if a high court agrees that an inmate is competent to waive his or her appellate rights, shouldn't that be where the buck stops?

Nope, Judge Warren J. Ferguson wrote for the majority:

"[Comer] is not taking his own life, he is co-opting the power of the state's capital punishment system — a power that must only be wielded in accordance with the Constitution's fundamental protections. The people's interest in justice, which forms the basis of the state's power to execute, should not be so easily commandeered. The right to die is not synonymous with the right to kill."

Comer says Ferguson's thinking regarding his case (and Judge Harry Peterson's concurrence) is skewed and biased.

"This court was surprised when I was found competent by Judge Silver," he writes to New Times. "They spent the last few years delaying issuing a decision, looking for something they could do to stop this, and they found nothing. So they invented something. I cannot believe the higher court will let it stand. We shall see, but it sure seems like a hell of a way to run a railroad."

In her dissent, Judge Pamela Ann Rymer agreed with Comer, calling the decision "a raw imposition of judicial power," and that "having determined that Comer is competent to withdraw his habeas appeal and that his decision to do so is voluntary, we lack jurisdiction to take any action with respect to his pending appeal other than to dismiss it."

Comer's bitter take on his curious situation is, "I said it before about this court being anti-death penalty, and here it comes true. They have delayed [my] case over and over. And now they violate their own law. They do not have jurisdiction, as Judge Rymer duly noted."

Those who were living in Arizona in the late 1980s are likely to recall Comer's notorious name. In April 1988, Maricopa County Judge Ronald Reinstein sentenced the California native to death after a jury verdict in one of the state's most grisly cases of the era.

The crimes for which he went to death row included murder, kidnapping and rape.

Accompanied by a girlfriend near Apache Lake (which is about 65 miles north of Phoenix), Comer first murdered a stranger he had bumped into at a campground, and then kidnapped and repeatedly raped a young woman who had been camping with her boyfriend at a nearby campsite. The woman escaped into the cold wilderness and remarkably made her way to safety after almost 24 hours.

Authorities soon captured Comer and his girlfriend in remote Gila County after a highly publicized manhunt. With his feral appearance, the career criminal looked something like Charlie Manson, except far more physically imposing.

During the seven-day trial (which Comer chose not to attend), the case prosecutor referred to the defendant as "the reincarnation of the devil on Earth," a characterization appellate courts later decried as excessive but not necessarily inaccurate.

The freakish atmosphere at Comer's sentencing in April 1988 is what caused the Ninth Circuit majority such grief.

In those days, judges, not juries, would sentence convicted murderers in death-penalty cases. (That changed a few years ago after a U.S. Supreme Court ruling in the Ring case, which involved another infamous Arizona homicide.)

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