Robert Charles Comer has been trying for years to get the state to execute him for a 1987 murder near Apache Lake.
He even filed legal papers asking the 9th U.S. Circuit Court of Appeals to finally rule on his request to drop all of his appeals and conclude he is competent enough to decide to waive his constitutional rights.
But two members of the three-judge panel gave him an answer this past week: No.
Not “no,’’ we deny your appeal. But “no,’’ we won’t issue a ruling. At least not yet.
The decision drew derision from the third appellate judge, Pamela Rymer, who noted her colleagues first heard the case, and reserved judgment, six years ago. Also, more than a year ago, the judges had oral arguments on the issue of whether Comer can drop his appeals.
“There is no reason for not ruling,’’ she wrote.
“We have had plenty of time to give full and fair consideration to all sides of all issues,’’ Rymer continued. “Comer and the people of Arizona are entitled to a decision, and we have a duty to render one.’’
But Rymer appears to be up against an unusual problem: Even if Comer is mentally competent, and even if he is entitled to drop all appeals, can a court allow him to be executed if the judges believe his trial was unfair?
That appears to be the argument of one of the three on the panel, Judge Warren Ferguson, who has sought to explain why it is taking them so long to rule.
“I maintain that the right to die is not synonymous with the right to kill,’’
He said Comer’s appointed lawyer — the one he keeps trying to fire — “demonstrated serious due process violations’’ in the case. The most troubling, Ferguson said, is that Comer was brought into court at sentencing “battered, shackled and naked except for a towel over his genitals.’’
Because of the concerns with his attorney’s representation, the judge said it’s going to take the panel more time to make a decision. In the meantime, Comer will continue to occupy a small cell at the state prison in Florence.
Comer declined an interview request by Capitol Media Services. And his appointed counsel, Julie Hall of Tucson, said she has been instructed by the court not to talk about the case.
Testimony during Comer’s trial showed he and his girlfriend, Juneva Willis, were at the Burnt Coral campground when Comer fatally shot another camper and stole the man’s belongings. Later that night, Comer and Willis kidnapped a couple, and Comer raped the abducted woman.
Willis eventually pleaded guilty to kidnapping as part of a plea deal for a 9-year sentence and testimony against Comer.
But Comer did not show up for his trial and was convicted of firstdegree murder, plus multiple counts of kidnapping, assault, robbery, rape and sexual abuse.
He finally was in the courtroom the day of sentencing, almost naked except for a towel. His body was slumped and his head drooped.
After determining he was conscious, Judge Ronald Reinstein sentenced him to death.
Comer has been trying to end his appeals, a position backed by the state. But in 2000, the appellate court refused, ordering a competency hearing.
U.S. District Court Judge Roslyn Silver found him legally sane. But the appellate court has refused to rule on her conclusion and the whole question of Comer’s rights.
Comer tried in February to push things along.
In hand-written pleadings, Comer asked the judges to let him “do what I am allowed to do by law, and that is to end the pursuit of the appeal of my death sentence and rid myself of the fanatical anti-death penalty nuts.’’
Defense attorney Michael Kimerer was brought into the case solely to deal with the competency issue. He said Comer has raised some interesting constitutional questions.
Comer had the legal right to plead guilty at trial, he said. In fact, plea agreements by their nature involve defendants giving up their legal right to a trial.
“I have a right to stop the appeals,’’ Comer wrote. “I have a right to atone for my sins against society.’’
Assistant Attorney General John Todd agrees, saying Comer’s attorney on appeal is not representing his interests but acting as a “next friend,’’ a status available only when the person is unable to litigate his own cause because of mental capacity or another disability.
And Todd agreed the court should rule quickly on the issue of Comer’s competence and his ability to cease further appeals.
“Both Comer and the state are entitled to a prompt decision from this court,’’ he wrote.
What appears to be holding up matters, though, is that question some judges find troubling: Can they clear the way for his execution by lethal injection if they have doubts about the fairness of his trial.
Kimerer said that poses an interesting possibility: If the court overturns his conviction, Comer is entitled to a new trial — one at which he can plead guilty and, potentially, not present any evidence to avoid the death penalty.