McKenzie Jr. (October 5, 1951
– May 10, 1995) was convicted of the murder of Conrad,
Montana schoolteacher Lana Harding on January 21, 1974.
Born in Chicago, Illinois, McKenzie was executed in 1995
by the State of Montana by lethal injection at Montana
State Prison in Deer Lodge, Montana. He became the first
person to be executed in Montana since 1976 when the
death penalty was reinstated.
Duncan Peder McKenzie Jr.
In 1975, a
jury convicted Duncan Peder McKenzie, Jr. of aggravated kidnapping
and deliberate homicide by means of torture. The Montana Supreme
Court affirmed his conviction and sentence and rejected his numerous
claims on appeal, including his assertion that the jury instructions
unconstitutionally shifted to him the burden of proving his state of
States Supreme Court twice granted McKenzie's petitions for
certiorari and each time remanded the case to the Montana Supreme
Court for further consideration. In 1980--its fourth review of the
case on direct appeal--the Montana Supreme Court ruled that any
error regarding the jury instructions was harmless beyond a
was then unsuccessful in each of his federal habeas petitions. While
litigating his first federal habeas corpus petition, McKenzie
discovered that a week after the jury verdict and a month before his
sentencing hearing, the trial prosecutor had a forty-five minute ex
parte meeting with the trial judge. He alleged in his second habeas
petition that this meeting violated his rights under Gardner v.
holding a hearing on the claim, in 1992, the federal district court
ruled that there was no credible proof that the 1975 conference
could have influenced the sentencing decision, and the Ninth Circuit
later affirmed that judgment.
In a third
federal habeas petition filed on the eve of his execution, McKenzie
challenged his execution after his twenty-year stay on death row. He
claimed, on appeal from the district court's denial of his petition,
that the state should be held responsible for the almost fifteen-year
period in which no court proceeding was held to resolve the Gardner
Montana countered that it should be considered
responsible only for five years and nine months of his twenty-year
stay on death row because that was the time his case had spent on
direct appeal. The appellate panel dismissed the petition on
procedural grounds, and McKenzie was executed two days later.
Montana Executes Killer of a Teacher
The New York Times
country music playing in his ears, a man convicted of murdering a
schoolteacher more than two decades ago was executed by injection at
the state prison here early today.
prisoner, Duncan McKenzie Jr., was the first person put to death by
Montana since 1943. Mr. McKenzie had repeatedly asserted his
innocence, and various appeals had enabled him to avoid eight
previous dates with the executioner in his 20 years on death row.
A spokesman for Gov. Marc Racicot said officials had
granted one of Mr. McKenzie's last requests: to be allowed to listen
to music at his execution. The prison provided the tape player, and
the tape was Mr. McKenzie's. It was a Marty Robbins album.
Duncan P. McKenzie
EXECUTION ON: A federal appeals court denied a stay
of execution for a Montana man who has been on death row for 20
years. On Monday, the 9th U.S. Circuit Court of Appeals voted 2-1 in
Pasadena, Calif., against another delay in the execution of Duncan
P. McKenzie, 43, convicted of the torture-murder of a rural Montana
schoolteacher in 1974.
McKenzie is to be executed by lethal injection
Wednesday. McKenzie had previously won eight stays of execution. His
lawyer says McKenzie has been on death row longer than any other
inmate in the country and argued that the delay constituted cruel
and unusual punishment in violation of the Constitution.
Peder McKenzie, Jr.
Deer Lodge, Montana
March 3, 1975
may 10, 1995,
by lethal injection
of 23 year old Lana Harding, a teacher in a rural area near Conrad,
Montana, was the crime that brought Duncan McKenzie, Jr., to death
row. McKenzie had kidnapped Harding from her home at the Pioneer
School, raped & then strangled her near to death, & finally beaten
her until she died. McKenzie had served a previous prison sentence
for assault & had only recently moved into the area. He was arrested
after police learned that his truck had been seen at the school on
the evening of the crime.
spent over 20 years appealing his sentence before he was executed in
1995. Among those to witness his death was Harding's mother, Ethel,
who had by then been elected to the state senate.
that week turned ugly. We drove from Helena through pea-soup fog &
horizontal snow. We were put through the compulsory ceremony of
logging our equipment through security, then we were taken out to
the prison courtyard. As we carried our photographic & recording
equipment across the yard, we unexpectedly bumped into McKenzie, who
was being escorted to maximum security. After all the negotiations
over whether we could be in the same room witf him, there we were,
side by side in the open air. No one even acknowledged anyone else.
Though I knew it was almost certainly against the rules, I grabbed
Duncan's right hand, which was cuffed tohis waist. When we reached
the inner sanctum, they separated us.
At the time
we met, McKenzie had beaten the devil, maneuvering through 8
execution dates & myriad postconviction appeals-the 2nd longest time
under the death sentence of anyone in the United States.
I'll either be executed Wednesday morning sometime or I will have my
sentence commuted to life without parole which, being alive, has a
lot of benefits to it but but being alive in a place like this has a
lot of drawbacks to it so...
kids out there that I haven't seen in years & some that don't want
to see me...."
One of my
assistants, Courtney Bent, nervously tried to coax a bit of
background out of McKenzie. He told us that in his youth, he had
driven his father to rodeos long before he earned a driver's
license. He had nursed his father's frequent hangovers. In exchange,
his father had taught him to be an auto mechanic.
McKenzie broached the subject of death.
who I had a great deal of trust in at the time, & who's died since,
told me that death should not be feared. That each night when we go
to sleep we dream for a certain period of time. Sometimes our
subconscious & our conscience will remember the dream or a portion
of it. When we're not dreaming, there's a void. It's just emptiness.
We don't know it's there. It's just part of the nights as it goes
by. It's a little slice of death & yet...we don't fear going to
only what we don't know or fear itself."
kept probing & Duncan went on.
I look at it-death-it's something we have to accept whether we want
to or not because from the day we're born to the day of our death,
we're dying. All of us..."
He went on
as if time meant nothing. He talked at his feet. Ne excess motion,
no flamboyant gestures, except to wince at the pain in his back. He
had rehearsed the things he said, at least in his mind; I had read
some of the same comments in the newspapers. His words were
dispassionate. Maybe as someone in his last hours his mind was on
automatic pilot. Maybe he was tired & had given up. It was the 5th
of May & he had 5 days left to live.
touched on his victim, Lana Harding.
heard nothing but wonderful things about Lana Harding as long as
I've been here. So, I can't say anything bad about her or her mother
for that matter. I can understand her grief & her anger because she
sustained a terrible loss. Our first daughter died a crib death at 6
months & what made it even more bizarre was that the day that she
died, we had taken her for her 6 month checkup & the doctor...if all
the kids were as healthy as she was, he'd be out of business."
listened to McKenzie, the guards made derisive remarks about his
veracity. This had been a fairly common occurrence during our
sessions at various institutions.
The next day
we were invited to the clemency hearing. Deer Lodge is a small town
where the modern & the old-fashioned clash. TV cameras & anchor
persons faced an audience of weathered faces topped by baseball caps
& cowboy hats. A mounted moose head on the back wall, & children ran
loose. On the left side of the courtroom sat those who were against
the death penalty; on the right, friends of the victim's mother.
through the prison that evening, I caught sight of McKenzie talking
through a partition to his family & his lawyers. They were bringing
him the news that the hearing had gone badly. I waved through the
glass. Four days to go.
injection is now the method of execution in Montana. The state's
death chamber is actually an RV. Witnesses to the execution sit at
the feet of the condemned.
For a brief
period Duncan was the most famous man in the state-front page. He
was the first man to be executed since FDR was in office.
449 U.S. 1050
101 S.Ct. 626
66 L.Ed.2d 507
Duncan Peder McKENZIE, Jr.
State of MONTANA
Supreme Court of the United States
December 8, 1980
On petition for
writ of certiorari to the Supreme Court of Montana.
The petition for a writ of
certiorari is denied.
Justice MARSHALL, with whom
Justice BRENNAN joins, dissenting.
On two prior occasions, this
Court has vacated decisions of the Supreme Court of Montana in
this death penalty case and remanded the case for further
consideration. McKenzie v. Montana, 443 U.S. 903, 99 S.Ct.
3094, 61 L.Ed.2d 871 (1979); McKenzie v. Montana, 433
U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977).
In both instances, we directed
the Supreme Court of Montana to reconsider the case in light of
intervening decisions of this Court establishing that due
process forbids a State to place on a defendant the burden to
disprove an element of the offense charged. McKenzie v.
Montana, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979)
(directing reconsideration in light of Sandstrom v. Montana,
442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)); McKenzie
v. Montana, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089
(1977) (directing reconsideration in light of Patterson v.
New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
On each remand, the state
court reaffirmed the conviction and reinstated the death
penalty. Mont., 608 P.2d 428 (1980); 177 Mont. 280, 581 P.2d
1205 (1978). In its most recent decision in this case, the State
Supreme Court conceded that the jury instructions
unconstitutionally shifted to petitioner the burden to disprove
that he had the criminal intent necessary to support conviction.
608 P.2d, at 457-458. The court nonetheless avoided granting
petitioner a new trial by deeming this constitutional violation
"harmless error." 608 P.2d, at 458-459. A state court's analysis
of harmless error in a typical case may not present a question
worthy of full review by this Court, yet, where, as here, the
death penalty is the result, close scrutiny is required. Because
I find the court's analysis of harmless error lacking of
evenhanded treatment, I dissent from this Court's denial of
Petitioner was charged with
two counts of deliberate homicide, two counts of aggravated
kidnaping, one count of sexual intercourse without consent, and
two counts of aggravated assault, all arising from the death of
one woman. A major element in petitioner's defense was that he
was incapable of "knowingly" or "purposely" committing the
Petitioner and the prosecutor
produced conflicting psychiatric and psychological testimony at
trial concerning petitioner's ability to understand the criminal
nature of his conduct and to conform his conduct to the
requirements of law. Although petitioner's capacity to form the
required criminal intent was thus put directly in issue, over
petitioner's specific objection, the judge repeatedly directed
the jury that "the law also presumes that a person intends the
ordinary consequences of his voluntary act" and that "an
unlawful act was done with an unlawful intent."
The trial court essentially
instructed the jury that it could presume the necessary criminal
intent if it found petitioner had committed the acts charged.
Petitioner was convicted of deliberate homicide and aggravated
kidnaping, and sentenced to death.
In Sandstrom v. Montana,
supra, we explicitly held that instructions of the kind
challenged by petitioner violate due process because they shift
to the defendant the burden to persuade the jury that he lacked
the requisite criminal intent. On remand of the instant case in
light of Sandstrom, the Montana court agreed that the
challenged instructions unconstitutionally shifted the burden of
proving the intent element of the crime from the State to the
defendant. 608 P.2d, at 457.
The court, however, reasoned
that not all such constitutional errors are prejudicial
and concluded that this Court has never mandated which of three
possible standards for evaluating the harmlessness of a
must be used. The court then selected the standard that permits
a court to sustain the conviction despite the constitutional
error where there is "overwhelming evidence" of guilt. 608 P.2d,
at 458. Finally, the court found such overwhelming evidence was
present in this case.
But what evidence did the
court find sufficient to overcome the constitutional error of
directing the jury to presume the presence of the requisite
criminal intent from the nature of the acts committed? The
Montana court itself relied solely on "the vicious manner in
which the crimes were committed" in concluding that petitioner "purposely
and knowingly intended" to commit the crimes. 608 P.2d, at 459.
I cannot help but be shocked that in taking this approach, the
Montana court simply applied the forbidden presumption. In so
doing, the court neglected to perform its task on review: it
failed to examine whether the disapproved instructions could
have infected the jury verdict. Instead, the court served as
another factfinder, again impermissibly placing the burden on
petitioner to disprove that the nature of his acts established
the requisite criminal intent. It surely cannot be that a
verdict following an unconstitutional instruction permitting the
jury to presume criminal intent can be immunized from reversal
because the reviewing court also impermissibly presumes criminal
This result was perhaps
inevitable once the state court selected the "overwhelming
evidence" of guilt standard to analyze whether the
constitutional error was harmless. For whatever value that
standard may have in reviewing a verdict following introduction
of evidence obtained in violation of constitutional guarantees,
see, e. g., Milton v. Wainwright, 407 U.S. 371, 92 S.Ct.
2174, 33 L.Ed.2d 1 (1972), use of the standard actually
precludes effective review of the prejudicial impact of
unconstitutional jury instructions.
Where isolated, tainted evidence is at issue, the reviewing
court may exclude that evidence from its assessment of whether
the remaining evidence supports the conviction. But where the
constitutional error occurred in the jury instructions, no
isolated portion of the record can be eliminated from the
judicial assessment. Nor can the effect of the instructions be
evaluated by examining the evidence alone, and ignoring the
unconstitutional instructions. For the precise issue in such
cases is the manner in which the jury could have assessed the
evidence as a whole, not the importance of any particular piece
of evidence to sustain the verdict. In selecting the "overwhelming
evidence" standard on the theory that "an appellate court should
view the case as a whole in assessing harmless or prejudicial
error," 608 P.2d, at 458, the state court neglected to review
the possible effect of the unconstitutional instructions on the
The possibility that a
constitutional error in jury instructions was harmless must be
evaluated on the premise that the jury acted lawfully and
reasonably followed the erroneous instruction.
Then the court must ask whether the defective instruction may
have contributed to the jury verdict.
And, before finding the error harmless, the reviewing court must
be convinced beyond a reasonable doubt that the error did not so
contribute. Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967). Indeed, on remand in State v.
Sandstrom, Mont., 603 P.2d 244, 245 (1979), the Supreme
Court of Montana followed just this analysis. We had remanded
Sandstrom for consideration of questions such as whether the
use of the disapproved instruction was harmless error in that
case, and whether such error could ever be harmless.
Sandstrom v. Montana, 442 U.S., at 526-527, 99 S.Ct., at
2460-2461. In response, the State Supreme Court correctly
applied Chapman in reasoning that it could find harmless
error only upon concluding:
"[T]he offensive instruction
could not reasonably have contributed to the jury verdict. In
considering the instruction, and the fact that intent was the
main issue in the District Court trial, we cannot make that
assertion. The erroneous instruction goes to a vital element of
the proof of the crime, namely the intent of the defendant
Sandstrom in committing the homicide. If the jury followed the
instruction, it could have presumed the intent without proof
beyond a reasonable doubt." 603 P.2d, at 245.
Therefore, the court ordered a
new trial for Sandstrom. The Montana court subsequently applied
the same reasoning in State v. Hamilton, 605 P.2d 1121,
1132 (1980) (appellate court must determine impact of
instruction upon a reasonable jury).
It appears that only in
petitioner's case is the Montana court unwilling to apply this
This seems to be yet another case in which a court sanctions "egregious
violations of the constitutional rights of criminal defendants
by blandly reciting the formula 'harmless error.' " Briggs v.
Connecticut, 447 U.S. 912, 915, 100 S.Ct. 3000, 3002, 64
L.Ed.2d 862 (1980) (MARSHALL, J., joined by BRENNAN, J.,
dissenting). However unpleasant the facts of this or other cases
may be, the courts are obligated to protect the constitutional
rights of the defendant. Due to concern that petitioner's rights
have not been preserved, this Court has already remanded this
case twice. I can understand the Court's reluctance to entertain
this case yet again, for we presume that the lower courts adhere
to the purposes of remands from this Court. Yet the Montana
court has failed to fulfill its obligation to carry out the
mandate of our decisions.
Therefore, I would grant certiorari and set the case for plenary
I also adhere to my view that
the death penalty is, under all circumstances, a cruel and
unusual punishment prohibited by the Eighth and Fourteenth
Amendments, Furman v. Georgia, 408 U.S. 238, 314-371, 92
S.Ct. 2726, 2764-2793, 33 L.Ed.2d 346 (1972) (MARSHALL, J.,
concurring); Gregg v. Georgia, 428 U.S. 153, 231-241, 96
S.Ct. 2971, 2973-2977, 49 L.Ed.2d 859 (1976) (MARSHALL, J.,
dissenting); Lockett v. Ohio, 438 U.S. 586, 619-621, 98
S.Ct. 2954, 2972-2973, 57 L.Ed.2d 973 (1978) (MARSHALL, J.,
concurring in judgment), and on that basis alone I would grant
certiorari and vacate the death sentence in this case.
915 F.2d 1396
Duncan Peder McKENZIE, Jr., Petitioner-Appellant,
Henry RISLEY, Warden of the Montana State Prison, Respondent-Appellee.
United States Court of Appeals,
Argued and Submitted Sept. 18, 1989.
Decided Oct. 9, 1990.
Appeal from the
United States District Court for the District of Montana.
Before WRIGHT, NORRIS and BEEZER,
WILLIAM A. NORRIS, Circuit Judge:
Duncan McKenzie, a state
prisoner, appeals the denial of his petition for a writ of
habeas corpus. In his petition, McKenzie claimed that his death
sentence should be vacated due to an ex parte meeting between
the prosecutor and the trial judge prior to sentencing. The
district court granted the state's motion for summary judgment
and denied McKenzie's petition. Because we hold that the
district court applied an incorrect legal standard, we reverse
and remand for further proceedings.
* In 1975, a Montana state
court jury convicted McKenzie of aggravated kidnapping and
deliberate homicide. Judge R.J. Nelson sentenced McKenzie to
This case involves the second
of two federal habeas petitions filed by McKenzie. After
exhausting state court remedies, McKenzie filed his first
petition for writ of habeas corpus in federal court.
During discovery related to this petition, McKenzie's attorney
learned that the special prosecutor in the case, Douglas
Anderson, had met with Judge Nelson ex parte for about forty-five
minutes. The meeting occurred on February 7, 1975, about one
week after McKenzie's conviction and one month before sentencing.
In light of this information, McKenzie filed a habeas petition
in state court, asserting, in part, that his constitutional
rights were violated as a result of the ex parte meeting. The
Montana Supreme Court denied the petition, and McKenzie filed a
petition for a writ of habeas corpus in the district court below.
The state simultaneously
answered the petition and moved for summary judgment. In
connection with this motion, the district court received
testimony from special prosecutor Anderson.
Anderson testified that he had met with Judge Nelson ex parte to
discuss the bill for his work as a special prosecutor. Anderson
stated that McKenzie's sentencing was not discussed. He admitted,
however, that his discussion with the judge may have touched on
the facts of the case in general, or as they related to the work
he had performed. According to the reconstructed record,
Anderson testified in part as follows:
[O]n cross examination, Mr.
Anderson was asked specifically whether he discussed with Judge
Nelson a number of particular matters relating to the case and
the work he had done on it. These included the evidence that [the
murder victim] was raped, the evidence that the victim was
tortured, Mr. McKenzie's psychiatric defenses, the change of
venue and the sentiment of the local community about the case,
the brutality of the murder and discussions he had had with
witnesses who had viewed the scene, among other subjects. Mr.
Anderson testified that, although he did not specifically recall,
his discussions with the Judge may have included some of these
subjects, although they were not discussed with reference to
Order Certifying Record at 4.
The district court found that
McKenzie had "presented no evidence that sentencing was
discussed at the ex parte meeting," and concluded that
McKenzie's allegation that the meeting " 'involved and affected
the sentencing decision' " was unsupported. Excerpt of Record at
34. On this basis, the district court granted the state's motion
for summary judgment and denied McKenzie's petition. McKenzie
We review de novo both the
denial of a petition for writ of habeas corpus, Carter v.
McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484
U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987), and a grant of
summary judgment, Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d
1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct.
3217, 110 L.Ed.2d 664 (1990). In reviewing the district court's
grant of summary judgment, we must decide whether any genuine
issues of material fact exist and whether the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a),
(b); Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 843
McKenzie contends that, in
granting the state's motion for summary judgment, the district
court improperly placed the burden on McKenzie to show that
sentencing was discussed at the ex parte meeting. McKenzie
argues that there is a strong presumption that ex parte
communications between judge and prosecutor are prejudicial, and
that, consequently, the burden must fall on the prosecution to
show that the contact was harmless.
We need not rule on whether
all ex parte communications are presumptively prejudicial
because we conclude that the district court applied a faulty
legal standard when it awarded the state summary judgment and
denied McKenzie's petition. The district court improperly
required McKenzie to prove that sentencing was in fact discussed
at the ex parte meeting. The correct inquiry is whether matters
were discussed that did or could have influenced the judge in
his sentencing decision. See, e.g., United States v. Reese, 775
F.2d 1066, 1077-78 (9th Cir.1985) (remanding for resentencing
because there was a "serious question" concerning the
possibility of reliance by the sentencing judge on ex parte
materials submitted by the prosecutor).
Applying the correct legal
standard, we find that the evidence shows that there was a
genuine issue of material fact as to whether Judge Nelson and
Mr. Anderson discussed matters related to the merits of the case
or potentially bearing on sentencing. McKenzie established that
an ex parte meeting occurred at which the case was discussed in
the context of the special prosecutor's fees. He presented
testimony in which Mr. Anderson conceded that his discussions
with the judge "may have included" conversation about the
brutality of the murder, evidence that the victim was raped,
McKenzie's psychiatric defenses, as well as other matters
directly related to the merits of the case. See Order Certifying
Record at 4. Contrary to the state's assertion, the fact that
Mr. Anderson further testified that these subjects "were not
discussed with reference to sentencing," id., does not cure any
possible constitutional infirmity. A pre-sentence discussion of
a brutal murder, even in the context of a fee discussion, may
well have had an impact on the thinking of the sentencing judge
at the proceedings to follow. Such a possibility raises a
genuine issue of material fact sufficient to defeat the state's
motion for summary judgment.
We therefore REVERSE the
summary judgment and REMAND to the district court to conduct an
evidentiary hearing, after allowing defense counsel appropriate
discovery, to make appropriate findings of fact, and for
resentencing should the district court decide that the ex parte
pre-sentencing discussion violated McKenzie's constitutional