Calif. high court rejects white-supremacist inmate’s challenge

Tuesday, July 19, 2011

A California trial court did not violate the First Amendment when it allowed prosecutors to introduce evidence of an inmate’s white-supremacist beliefs during his death-penalty trial, the state supreme court has ruled.

Kenneth Ray Bivert was convicted and sentenced to death in 2001 in the 1997 slaying of another inmate. Bivert was the leader of “the woods” — a group of white inmates — at Salinas Valley State Prison in Monterey.

Bivert had assaulted inmate John Dixon, a white inmate, in 1996, because Dixon refused to carry out Bivert’s orders of attacking a white inmate who had bought drugs from a black inmate.  Bivert then attacked inmate Leonard Swartz, also white, because Bivert heard that Swartz was a child molester. Court documents say Bivert allegedly told another prisoner that he believed in “the white race taking care of their own” and that “over the years [the White] race had gotten soft, and he couldn’t believe the people they were letting walk around nowadays.” Swartz died 17 days after the attack.

Because Bivert had killed one inmate, assaulted another and at age 17 had killed three other people, prosecutors sought the death penalty. The jury found him guilty and returned a sentence of death during the penalty phase of the trial.

During lengthy appeals, Bivert argued that the trial judge violated the First Amendment by admitting into evidence his association with the white inmates who held racist views. Bivert’s attorney pointed to the U.S. Supreme Court’s decision in Dawson v. Delaware (1992), in which the Court ruled that inmate Donald Dawson’s First Amendment rights were violated by the admission into evidence of his association with the Aryan Brotherhood prison gang. In his opinion, Chief Justice William Rehnquist wrote that “the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson’s victim.”

Bivert contended that the Dawson ruling should control his case, because his victims were white. The California Supreme Court disagreed in its July 11 opinion in Bivert v. State, finding that Bivert’s association with white supremacists was relevant because “it tended to establish his motives and mens rea (criminal intent) for the assault on Dixon and the murder of Swartz.” The reasoning was that Bivert had selected his victim because he wanted to purify the white race by getting rid of so-called undesirables.

The California Supreme Court quoted the U.S. Supreme Court’s acknowledgment in Dawson v. Delaware that “the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.”

California’s high court concluded that the trial court “did not violate defendant’s First Amendment rights by admitting evidence of his prison membership in an association of white supremacists.”

Tags: , , ,