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OK Death Penalty Conviction Affirmed Despite Divided Jury, Failure to Give Manslaughter Instruction

By Shari Allison

Gilson v. Sirmons, 2008 WL 863034 (4/2/08) (Published) - A habeas death penalty affirmance by a divided court.Reviewing the issue de novo [because the Oklahoma courts did not apply the correct standard], the 10th holds it was not a violation of due process for the jury to convict the petitioner of child abuse murder, even though the jury was divided as to whether he committed the crime by committing child abuse or by permitting the mother to do so. The means to commit the offense were not so disparate as to exemplify two inherently separate offenses.Under the AEDPA standard, it was okay for the state court to hold it was not a violation of Apprendi for the state appellate court, not the jury, to find that the petitioner was a major participant in the felony and participated with a reckless indifference to human life, thus constitutionally qualifying the petitioner for the death penalty...continue to full post

Full post as published by Tenth Circuit Blog on April 09, 2008 (boomark / email).