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Court Strikes Down 1981 Death Sentence for Infant's Torture and Murder

By Casey C. Sullivan, Esq. on June 03, 2015 | Last updated on March 21, 2019

Brett Pensinger, a teen-aged killer who was sentenced to death for the kidnapping and murder of a five-month-old more than 30 years ago, won't be executed after the Ninth Circuit overturned his death sentence on Tuesday. In 1981, the 19-year-old Pensinger kidnapped a San Bernadino infant and her brother. The brother was dropped off unharmed, but the infant was found murdered and mutilated.

Pensinger was subsequently convicted of murder, with a kidnapping and torture enhancement, and sentenced to death. However, the jury was given improper instructions, leading to the overturning of his sentence many years later.

A Grisly Murder of a Five Month Old

The girl's murder was gruesome and torturous. At trial it was alleged that Pensinger kidnapped and murdered the daughter of an acquaintance, having been thrown into a rage when a third party stole his rifle. The girl's body was found mangled, with parts of her being cut out and never discovered. Pensinger was sentenced to death based on two special circumstances: that he had murdered the girl in the course of a kidnapping, and that he had murdered her with the intent to torture her.

However, the jury instructions inaccurately stated the murder-kidnapping rule. Jurors were told that kidnap-murder to be found, Pensinger must have been "engaged in kidnapping." For that special circumstance to apply, the murder must have been committed in order to carry out or cover up a kidnapping. This "independent felonious purpose" requirement was announced by the state Supreme Court the year before Pensinger's trial. Jurors were also not told that the torture-murder circumstance required proof of intent to torture.

Pensinger has a gruesome case history befitting a gruesome crime. The California Supreme Court tossed Pensinger's torture-murder special circumstance finding based on faulty jury instructions but upheld the kidnap-murder finding. Pensinger filed a federal habeas petition which, thirty years after it was filed, wound up before the Ninth Circuit.

The Ninth Overturns Pensinger's Death Sentence

Procedurally, the Ninth was in a unique place. Since Pensinger's habeas petition was filed in 1990, it predated the Antiterrorism and Effective Death Penalty Act of 1996, which greatly circumscribed federal court's review of habeas petitions. That left the Ninth applying de novo review, rather than the limited review allowed under the AEDPA.

Similarly, the Ninth may have been barred from hearing the case, had the state not repeatedly missed the opportunity to argue as much. Under Teague v. Lane, federal court are barred from retroactively applying "new constitutional rules of criminal procedure" on collateral review. At three different stages they failed to advance this argument, causing the Ninth to decline to take it up sua sponte on appeal.

That left the Ninth to decide the case anew, unbound by common restrictions on federal review. The court found that the jury instructions clearly misstated the law at the time. Further, even though the defense did not object to them, the trial court itself had a responsibility to properly instruct the jury. Failure to do so violated Pensinger's Eighth Amendment rights.

Pensinger will now be taken off death row. He wasn't facing any immediate danger of death, however. California's capital punishment system has been halted by court order since 2006 and was ruled unconstitutional in 2014.

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