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A defense attorney told the Utah Supreme Court on Tuesday the prosecutors who helped select Von Lester Taylor's jury two decades ago discriminated against non-Mormons, unjustly influencing Taylor's death sentence for a double murder.
"You have a right to have a fair cross section of the community on your jury and Mr. Taylor was denied that right," said Brian M. Pomerantz, a deputy federal public defender from Los Angeles who is handling Taylor's appeal. "You should not discriminate against jurors on the basis of religion," he said, calling the practice unconstitutional.
Tuesday's arguments marked the third time the justices have heard an appeal by the 46-year-old Taylor, a self-proclaimed devil worshipper on death row for killing a woman and her mother in 1990 after breaking into the family's Summit County cabin.
Pomerantz based his arguments on handwritten notes from prosecutors in the case that mysteriously became part of the public file from the trial court. The notes included what appeared to be a "scoring system" in which prosecutors awarded points to jurors who were LDS during the selection process, Pomerantz argued.
He said that the original jury pool was deemed to be 50 percent LDS, but when the final 12 jurors were selected, that percentage rose to 75 percent. He cited the case of juror Holly Connor, whose answers when questioned during the jury selection matched the rest of the answers given by the jury panel, except that Connor gave her religion as Methodist.
Pomerantz also said four LDS jurors that were struck from the jury were done so after they stated they wouldn't vote for the death penalty or had "philosophical differences with the church."
Assistant Utah Attorney General Erin Riley balked at the notion that prosecutors erroneously struck jurors based on religion.
"If it did occur, it's not clear that [striking jurors based on religion] is error," she said. She said jurors can be stricken on beliefs, which include religion.
She said in the case of Connor, the woman showed up late for jury duty, had a history in the court system and had knowledge of media coverage of the case of Taylor's co-defendants all reasons that prosecutors would strike her from the jury.
Justices also questioned how the jury's religion can be linked to the outcome of the sentence they chose for Taylor.
"Is there anything on the record that a religious person is more or less likely to impose the death penalty?" asked Utah Court of Appeals Judge James Davis, who sat in for Justice Ronald Nehring, who recused himself from the case.
Riley called the appeal a stall tactic and said Taylor made and lost the same arguments at trial, on appeal and in a prior post-conviction relief claim.
"The question is, how many times does he keep getting to file these, especially when a death sentence has been imposed?" Riley asked. "They want to keep filing because they want to delay the sentencing from being carried out."
But defense attorneys contend, in addition to the jury issue, Taylor's previous attorneys were incompetent. They also argue there is evidence that a key witness in the case against Taylor lied about Taylor's involvement.
Scott Manley testified against Taylor at his trial, but he recently gave a sworn declaration to Taylor's defense attorneys stating that he was coerced by parole agents who threatened to send him back to prison unless Manley helped build a case against his acquaintance, Taylor.
Considered among the most influential testimony given to the jury, Manley's testimony "appears to have been largely manufactured," Pomerantz said.
The high court took the arguments under advisement.
The Utah Supreme Court in 2007 affirmed the trial judge's decision rejecting Taylor's challenge of his capital-murder conviction and death sentence. In a unanimous decision, the justices agreed that the attorneys who handled appeals for Taylor didn't miss any obvious legal claims that would have overturned his sentence.
Taylor alleged his lawyers should have conducted an investigation to identify mitigating factors that would have lessened his sentence; and, he said, they should have spoken to his siblings and looked into the possibility that he has brain damage.
Taylor received the death penalty for two Dec. 22, 1990, murders in Summit County.
Taylor and Edward Steven Deli broke into a cabin in Oakley after escaping from a halfway house, opened Christmas presents they found there and waited for the occupants to return. The first family members who arrived Kaye Tiede, 51; her mother, Beth Harmon Tidwell Potts, 72; and her daughter, 20 were tied up. The escapees then shot Tiede and Potts and ordered the daughter to pack a suitcase so she could leave with them.
As her mother and grandmother were being shot, the daughter began to pray. Taylor, who was on parole after serving a prison sentence for aggravated burglary, told her to stop because he was a "devil worshipper," according to court documents.
A short time later, Tiede's husband, Rolf Tiede, and their 16-year-old daughter arrived, and Taylor ordered them into the garage.
He told the father to remove his clothes, after which he stole $105 from his wallet and shot him.
Tiede played dead, but Taylor returned and shot him in the head at point-blank range, doused him in gasoline and set the cabin ablaze.
Taylor and Deli then drove away with the daughters in the family's car.
Rolf Tiede, who survived the two gunshot wounds, was able to ride a snowmobile two miles for help, and the two men were arrested after a police chase.
Deli was found guilty at trial of second-degree murder and is serving a life sentence. Taylor pleaded guilty to capital murder, and a jury in 1991 sentenced him to death.
Pomerantz argued Tuesday that Taylor didn't fire the "kill shot" and questioned whether one of the daughters correctly heard Taylor boasting about shooting the women. He said the daughter's testimony shouldn't be considered.
Justice Thomas Lee criticized Pomerantz's dismissal of the victim's account.
"It has no bearing? He said he shot her in the head," Lee said.