Tenth Circuit Reinstates Death Penalty for Defendant Who Pleaded Guilty as an Accomplice – JONATHAN TURLEY


It is certainly difficult to have any sympathy for Taylor who was found guilty in a crime that was horrific on every level. His accomplice Ed Deli fatally shot Kaye Tiede and her mother, Beth Potts. They then kidnapped Tiede’s daughters, ages 20 and 17. The Tenth Circuit however noted that Taylor was directly responsible for wounding the father:

“About two hours after the initial shooting, Linae’s sister (Tricia) and her father (Rolf) arrived at the house. Mr. Taylor instructed Mr. Deli to shoot Rolf. When Mr. Deli hesitated, Mr. Taylor shot Rolf twice in the head and left him in the cabin, believing him to be dead.”

At trial, Deli denied guilty, was tried and given a life sentence. Taylor on the other hand admitted guilty and was then sentenced to death. Taylor argued insanity and his words to the state psychiatrist were used against him during sentencing. (Many years ago, I litigated a similar issue in the Fifth Circuit in Brown v. Louisiana on the need to give Miranda warning in such psychiatric evaluations).

A few month ago, U.S. District Court Judge Tena Campbell overturned Taylor’s death sentence due to ineffective legal counsel. On May 1, 1991, Taylor accepted a plea to two counts of capital murder in exchange for eight lesser charges being dropped. The deal, however, did not include taking the death penalty off the table and he was sentenced to death.

Moreover, the district court found that there was inadequate discovery by his defense counsel, particularly on proving his claim that he did not actually fire the murder weapon even though prosecutors claimed that he carried and reloaded the gun. The court noted:

“He did not visit the scene. He did not hire an investigator. And critically, he did not consult, much less hire, experts. If [Defense counsel Elliott] Levine had fulfilled his duty to investigate by, for example, hiring a ballistics expert and a forensics expert, he would have uncovered evidence that contradicted the state’s evidence. Mr. Levine was not informed when he advised Mr. Taylor, and he made little to no effort to become informed. There was no articulated, or conceivable, strategic reason for failing to hire an investigator and experts in a death penalty case.”

Ultimately, the plea itself was undermined by what the court found was ineffective counsel.

Judge Campbell held:

“The court finds that Mr. Taylor’s constitutional right to effective assistance of counsel was violated when he pleaded guilty to two capital murders based on inexcusably uninformed advice from counsel which then exposed him to the possibility of execution. The record shows there is a reasonable probability that, but for trial counsel’s failure to investigate, Mr. Taylor would not have pleaded guilty to two capital murders and would have insisted on going to trial with evidence that Mr. Deli, not Mr. Taylor, caused the deaths of Kaye Tiede and Beth Potts.”

The Tenth Circuit disagreed and reinstated that death penalty. It dismissed any need to even look at the ineffective counsel claim due to the wording of the plea and related showings:

“On appeal, the state does not challenge Mr. Taylor’s new evidence. The state concedes for the sake of argument that Mr. Taylor did not fire the fatal shots. Rather, the state argues the district court erred as a matter of law in confining the actual innocence inquiry to Mr. Taylor’s guilt of capital murder as a principal. According to the state, Mr. Taylor pleaded guilty to the two counts of capital murder generally, not under a specific theory of liability. Thus, the state argues that because Mr. Taylor cannot establish actual innocence as both a principal and an accomplice, his claims for relief remain procedurally defaulted and we cannot consider them.

We agree with the state. As we explain below, under Utah’s laws regarding accomplice liability, the state provided Mr. Taylor notice of what crime he was being charged with and pleading guilty to: capital murder. And Mr. Taylor has done nothing to prove a reasonable, properly instructed jury more likely than not would have reasonable doubt about his guilt as an accomplice to the murders. Thus, we need not reach Mr. Taylor’s claim of ineffective assistance of counsel leading to a defective guilty plea because it remains procedurally barred.”

The fact that the ineffective counsel claims were not considered are deeply troubling. This strikes me as a compelling ineffective counsel case. Again, I agree with the Tenth Circuit that Taylor’s guilt as an accomplish is well-established. However, he had a right to a fully informed and prepared defense.

There is also the incongruity in the sentences in the case. While not a viable independent basis for challenge, it is troubling to see the shooter given life when the non-shooter who pleaded guilty was given death. It also reflects an interesting dynamic with juries. A jury was given an opportunity to express its condemnation with Deli in finding his guilty but then felt life was sufficient as a penalty. The jury was not given the same opportunity to adjudicate guilt for Taylor and then, in its only decision, opted for the death penalty on sentencing.

In the end, if we are to retain the death penalty, there must be robust protections for effective counsel. I do not see those protections in this case despite the heinous conduct of the accused.

Here is the opinion: Taylor v. Powell