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Appeals court orders new hearing for Yuma rest-stop killer

Editor’s Note: A previous version of this story misquoted Dale Baich, an assistant federal public defender. Baich said his office is considering whether to appeal, but he otherwise declined to comment on the decision. The story below has been updated to correct his statement. Clients who used the previous version of the story are asked to run the correction that can be found here.

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WASHINGTON – A federal court ruled Thursday that convicted murderer Gregory Scott Dickens should get another chance to argue that his attorneys failed to investigate mental problems that could have been used in his defense.

A divided 9th U.S. Circuit Court of Appeals rejected Dickens’ claims that the death penalty was unreasonable because he was not the triggerman in the 1991 double killings at a Yuma rest stop.

But it ordered a lower court to consider whether Dickens can present his defense of ineffective counsel, which the district court had rejected.

It was far from a unanimous decision, with four separate minority opinions, one of which would have rejected all of Dickens’ claims and one that would have accepted them all.

Attorneys for both the state and for Dickens said Thursday that they were still “digesting the opinion” and considering whether or not to appeal.

Dickens, 48, was convicted with Travis Amaral, 38, in the 1991 shooting deaths of a young couple during a robbery at an Interstate 8 rest stop east of Yuma.

The court opinion said Dickens and Amaral, who was then 16, went looking for someone to rob and waited several hours at the rest stop before Bryan and Laura Bernstein pulled in to a stop on the other side of the highway. Dickens gave a .38-caliber handgun to Amaral, who crossed the highway and approached the Bernsteins, court documents said.

After taking Bryan’s wallet, Amaral walked the couple in front of their car where he shot Laura and then Bryan in the head. Dickens drove in to the rest stop and picked up Amaral before driving to Dickens’ brother’s house, where they took cash and a credit card out of the wallet and burned the rest.

A deputy sheriff arrived 20 minutes after the shooting to find Laura dead and Bryan still breathing. Bryan died soon after.

Dickens and Amaral were charged in the killings in 1992. Dickens was subsequently convicted of felony murder, armed robbery and conspiracy to commit armed robbery, and sentenced to death on the murder counts.

After unsuccessfully appealing in state courts, Dickens turned to the federal district court. It also rejected his claims, including a new claim that his attorneys did not investigate and present “mitigating” evidence of his brain damage and fetal alcohol syndrome.

A three-judge panel of the 9th Circuit largely agreed in 2012, but ruled that Dickens should again be able to press his ineffective assistance claim on the mitigating evidence in light of an intervening decision by the U.S. Supreme Court.

The full circuit court agreed Thursday, ordering the district court to let Dickens present evidence that would allow him to present his new defense, which would otherwise be procedurally barred.

In one of the minority opinions, Circuit Judge Consuelo Callahan argued that Dickens’ “new” defense was simply an extension of one that had been rejected by state courts. She said there are “three strikes against Dickens and he should be out of court” and that the majority ruling would encourage defendants to “concoct ‘new’ claims” in hopes of getting another round of appeals.

A final minority opinion argued that the death penalty was inappropriate for Dickens, “who neither took life, attempted to take life, nor intended to take life.”

Assistant Arizona Attorney General John Todd called the decision “correct” and said he is “pleased with part of the decision,” but that his office has not decided whether to appeal.

Dale Baich, an assistant federal public defender, declined to comment on the decision, but said he is also weighing an appeal.

“We’re carefully reviewing and we’ll decide soon what course we’re going to take,” Baich said.