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Abandonment and Prejudice

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What kind of mitigating circumstances would it take to outweigh these aggravating circumstances?

The sentencing court found the following facts beyond a reasonable doubt. Stokley was convicted of murdering two 13-year-old girls over the July 4th weekend in 1991. Stokley is a person of above average intelligence. At the time of the crime, he was 38 years old. Stokley intended that both girls be killed. He killed one of the girls and his co-defendant killed the other. Before the men manually strangled the girls to death, both men had sexual intercourse with the victims. Both bodies "were stomped upon with great force," and one of the children bore "the clear chevron imprint" from Stokley's tennis shoes on her chest, shoulder, and neck. Both victims were stabbed in their right eyes with Stokley's knife, one through to the bony structure of the eye socket. The girls likely were unconscious at the time of the stabbing. The girls' bodies were dragged to and thrown down a mine shaft.
Schizophrenia on the same scale as the Tucson shooter, maybe.  Duress on the scale of being forced at gunpoint, maybe.  But Stokley has neither of those.

The case in the Ninth Circuit is Stokley v. Ryan, 09-99004.  Stokley was sentenced to death and denied relief all the way down the line.  The U.S. Supreme Court denied certiorari on opening day, October 1.  Now Stokley's attorneys claim he was "abandoned" within the meaning of Maples v. Thomas, thereby permitting reopening the case.  (See posts here and here.)  On November 15, the Ninth Circuit panel majority initially rejected that claim, convincingly I thought, on the primary ground that there was no abandonment and secondarily that there was no prejudice.  Stokley's "bad childhood" and "I behave when locked up" evidence, neither of which has any connection to the crime, is so weak as to not come remotely close to outweighing the aggravating circumstances in this case.  Curiously, on November 21, the panel majority withdrew the "no abandonment" holding and rested solely on the "no prejudice" holding.  Perhaps something in the rehearing petition convinced the majority this was the more solid ground.

Today the Ninth Circuit denied rehearing en banc, over numerous dissents.  The execution is scheduled for December 5.

Update (Dec. 1):  AP has this story on the certiorari petition to the US Supreme Court.

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I can see Stokley's attorneys trying to use Maples, but wasn't the Eddings claim presented during postconviction and during the first federal habeas appeal?

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