Dead Man Talkin'

"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.

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.)

Judge Reinstein, one of the county's most respected jurists, had presided over Comer's trial.

Little doubt existed in anyone's mind at the time, including Comer's attorneys, that Reinstein would impose death.

The judge asked jail officials to get Comer to court for sentencing. No small task.

The jailers tried to force Comer from his cell with high-pressure water hoses, truncheons and their fists. During the videotaped melee, Comer pulled out a long homemade shank (he's long been a master at fashioning knives out of seemingly nothing) and tried to stab them.

Finally, the authorities strapped Comer into a wheelchair and pushed him into Reinstein's court, naked except for a cloth covering his genitals, his face bloodied from his cellblock clash. He sat mutely, head tilted to one side, as the judge pronounced the predictable sentence: Death plus 300 more years on the rape/kidnapping case.

"We have never before read of a man being sentenced to death, or even presented to a court, under such circumstances," Judge Ferguson wrote on September 13 in ordering Comer's re-sentencing.

The judge said the specter of Comer "shackled, beaten and tattooed certainly increased the perception of his dangerousness. If Comer had been sentenced before a jury, these circumstances would have given rise to insurmountable prejudice. . . . The appearance of this naked, bleeding, shackled man was a severe affront to the dignity and decorum of the judicial proceedings."

The "perception" of his dangerousness?

Comer was shackled because he was extremely dangerous, strong, clever and determined to hurt anyone he possibly could get to.

Comer writes that "what [the Ninth Circuit] said about what happened in court at my sentencing is a load of crap. I fought the cops, and then after it was all done and they tried to dress me, I fought more. I had on boxers and they wrapped a blanket around me, and I shrugged them off. It's all documented. It didn't bother me a bit. My head was tilted because I was trying to break the brake lever off the wheelchair to use as a shank. I was 100 percent awake during the sentencing and ready to fight more. As proof, I went straight from the courtroom to CB-6, where I tried to get into a fight with ADOC officers. All the stuff about not being able to talk to my lawyer because I was chained. Well, New Times saw me in Judge Silver's court ("Arizona's Worst Criminal," May 2, 2002). I was more chained up and had stun belts on, and I had no problem at all speaking."

Many legal scholars are convinced that Comer's case will go to the next level, the U.S. Supreme Court. But if he does eventually "lose" his appeal and is re-sentenced, the female victim of his unthinkable acts in the mountains near the lake surely will have to testify again. That may be the most unfortunate byproduct of the Ninth Circuit's ruling, if it's allowed to stand.

Comer, by the way, has been a model inmate for years, and seems (in correspondence, courtroom appearances and anecdotally) to be a far cry from the monstrous individual he most certainly once was. Yet, in 2002, he provided a cautionary note in an interview with New Times.

"I am not Hannibal Lecter," he said, "but I'm not that far away from being him, either — under the right circumstances."