CHARLES UNGER
It's not easy to have your murder conviction overturned due to
ineffective assistance of counsel, however, if you are foolish enough
to compare your client to Charles Manson, that is one of the ways.
This is the amazing story of Richard Boyde, who in 1982 was
convicted of robbery, kidnapping and murder. The victim was a clerk
at a 7-Eleven store in Riverside County. At his trial Boyde was
represented by Deputy Public Defender Malcolm MacMillan. After Boyde
was found guilty, they proceeded to the sentencing phase. It is here
that the prosecutor, if he wishes, asks for the death penalty in this
type of case and the defense attorney is supposed to make every
possible argument he can to save the life of his client.
Somewhat unbelievably, in his final argument, MacMillan made a
reference to the movie "Helter Skelter," which dealt with the murders
committed by Manson and his followers and proceeded to tell the jury
that Boyde was similar to Manson and that both were products of their
environment.
"I am a child of your prisons," MacMillan said quoting Manson's
exact words at his own capital trial. "You may blame me all you wish,
but I was taught and learned to live and breathe in your
institutions, your prisons. And Richard Boyde, to a certain extent,
is a child of your institutions."
Yes, this is what MacMillan said.
Perhaps he forgot he was working for the defense and thought he
had suddenly become the prosecutor.
The 9th U.S. Circuit Court of Appeals led by well-regarded
conservative Judge Alex Kozinski found that this glaring error among
others constituted ineffective assistance of counsel and the judges
overturned the death sentence. Judge Kozinski said that he couldn't
think of a worse way to try to gain sympathy for one's client. And as
he put it, "It is difficult to conceive of any possible justification
for referring to a notorious mass murderer in trying to persuade the
jury to spare Boyde's life, and certainly not one that warrants
comparing Boyde to that murderer."
MacMillan was contacted after the 9th Circuit's ruling and
acknowledged that the Manson argument was not his finest moment.
Believe it or not, that wasn't all that the appellate court had to
rely on.
It turns out that Boyde had about as bad a childhood as one could
have suffering both sexual abuse and beatings by his parents.
MacMillan never introduced these mitigating factors into evidence and
in fact did just the opposite, putting Boyde's mother and stepfather
