An aspiring Kiwi rapper convicted of first degree murder for a jailhouse killing in the United States will spend 25 years in a foreign prison after losing his appeal.
The appeal decision is critical of Clinton Forbel Thinn's decision not to take the stand in his own defence, saying remaining silent effectively sealed his fate with the jury.
Thinn, the stepbrother of former National Party deputy leader Nikki Kaye, strangled his cellmate Lyle Woodward to death over several minutes in a San Diego jail using a ripped cloth ligature in December 2016.
Thinn had been awaiting trial for a bungled San Diego bank robbery at the time of the killing after travelling to the US to pursue his fledgling rap career.
Kaye issued a statement yesterday indicating her family planned to continue fighting for Thinn's release, telling the Herald:
"I do not wish to make comment as a further appeal is being prepared."
The former Auckland Grammar student and son of Auckland lawyer Neil Thinn attended rehab for drug addiction and mental health problems before travelling to the US.
He originally faced the death penalty but was instead sentenced to life in jail after being found guilty of murdering Woodward in July 2018.
At a hearing in San Diego this month, his lawyer Robert Boyce appealed the conviction and sentence, arguing the killing was self-defence.
Boyce claimed the trial judge was wrong to have ruled crucial defence evidence about racial politics in US jails was inadmissible.
The defence wanted to call experts and former inmates to detail the highly segregated and violent nature of US prison life to show Thinn - "a white inmate in a cell with two black inmates" - was isolated, vulnerable and alone.
They also argued the judge erred by not instructing the jury about self-defence, which could have resulted in a lesser manslaughter conviction.
Shaking with '1000-yard stare'
The appeal finding details the death of Woodward.
He and Thinn were sharing a cell with another inmate who had smuggled methamphetamine into the prison. The man gave the drugs to Woodward before falling asleep.
The prison had been under lockdown on the day of the incident. About 12.55pm Thinn pressed an intercom button and asked for a nurse to check his cellmate's vital signs.
When prison staff arrived they found Thinn standing shirtless over the motionless victim, breathing heavily and shaking, with a "1000-yard stare".
A ripped piece of blue cloth, likely fashioned out of a prison uniform and used to kill Woodward, was found in the cell toilet.
Prison staff tried unsuccessfully to revive Woodward, before paramedics found a pulse and rushed him to hospital. He never regained consciousness and life support was switched off several days later.
Thinn had red marks across the front of his body and blood around his fingernails, which was found to belong to Woodward.
Boyce claimed Thinn had strangled Woodward in self-defence after Woodward attacked him in a meth-induced rage.
As the other cellmate was asleep, there were no other witnesses.
The defence argued Thinn was a vulnerable inmate due to his nationality, and that Woodward had bullied him and stolen his food.
"Thinn, as a foreigner in a cell with two inmates of another race, was especially vulnerable to violence and that failure to stand up to such bullying could place him at greater risk," Boyce said.
"This evidence would have increased the probability that Thinn 'actually perceived imminent threat of death or great bodily harm' from Woodward."
At Thinn's first trial, which resulted in a mistrial, inmates gave evidence that he'd had a greater need to act in self-defence, because he was from New Zealand, spoke with an accent and "didn't seem to fit in anywhere".
Another said Thinn attracted attention for purchasing food from the commissary and selling it in exchange for other inmates' drawings.
Inmates were "on him like flies, just trying to get something from him".
Expert Francisco Mendoza said foreign inmates often became targets for violence, demands for sexual favours or commissary demands as "rent" for protection.
Stealing another inmate's food could escalate to violence or death.
Thinn's behavior in a jailhouse breakfast video was unusual, Mendoza explained.
"He waited until all other inmates finished eating to leave his cell. This behaviour suggested to Mendoza that Thinn felt isolated, without anyone to back him up.
"By contrast, Lyle appeared neither vulnerable nor isolated; he was the first one out for breakfast and appeared like a jail 'regular'."
But the judge overseeing Thinn's second jury trial ruled such evidence was at best "speculative" about what had occurred and did not prove Thinn was fearing for his life when he killed Woodward.
"Although various things COULD have happened in the cell, racial dynamics only supported a speculative inference as to what actually happened unless there was something more to suggest that Lyle attacked Thinn in the cell because of his race."
Boyce had argued that the red marks on Thinn's body were consistent with a struggle, and was evidence to support the self-defence argument. This was backed, he said, by Woodward's methamphetamine use and Thinn's vulnerability.
But again, the judge ruled against instructing the jury about self-defence, as this would require some information about Thinn's state of mind at the time of the killing.
The appeal decision notes that Thinn - the only live witness to the incident - elected not to testify at his trial.
But it found such testimony was likely to be necessary in this case to prove the self-defence argument run by his legal team.
"Without it, there was no evidence of Thinn's actual state of mind. Absent some indication of what occurred in cell 4 on December 3, there was no basis for the jury to believe that Lyle threatened or attacked Thinn.
"Nor is there any rational basis for a jury to find that Thinn actually believed in the need to defend himself against imminent danger of death or great bodily harm when he strangled Lyle from behind."
The appeal decision ruled that the trial judge was right to find evidence about prison racial politics was inadmissible and not to instruct the jury on self-defence.
"Even if jurors accepted that Thinn and Lyle engaged in a mutual struggle - despite the come-from-behind strangulation and lack of marks on Lyle's hands - there is no evidence from which jurors could make a reasonable, as opposed to speculative, finding as to Thinn's state of mind when he strangled Lyle."
The appeal was dismissed.
'P -fuelled rage'
Clinton Thinn was once tackled to the ground in central Auckland after being seen carrying a concealed semi-automatic rifle and 40 live rounds of ammunition.
Auckland lawyer Scott Leith and his mate Matt Cross were enjoying a night out with fellow Army reserves in July 2006 when they spotted Thinn trying to hide the firearm beneath his jacket.
Leith, a former police officer, told the Herald on Sunday he feared Thinn was going to shoot someone so he and a mate jumped on the then teenager to disarm him.
"As I parked the car, myself and one of the other officers noticed Clinton walking in Fort St carrying and trying to hide a high-powered rifle under his jacket. We immediately dialled triple 1 and decided we thought he was going to go and shoot someone if we didn't intervene. I leapt on him and wrestled the loaded firearm off him and held him down till police arrived."
Leith said Thinn threatened the two men with gang links and said he would have them killed, but they restrained him until police officers took him into custody.
It later emerged Thinn had earlier stormed out of his apartment, following a party, in what police described as a "P-fuelled rage" before stealing his father's hunting rifle from his Parnell home and heading into the CBD.
Court documents show Thinn was carrying the rifle in the "sul" position, where "the barrel of the rifle is pointed towards the ground and slightly forward. The holder has his hand over the trigger guard ready to fire if required".
Police discovered 40 rounds of live ammunition and four spent cartridges in Thinn's trouser pockets and a spent round in the chamber.
After Thinn's 2006 arrest, police raided his house and found cannabis seedlings and a meth pipe.
• US jury hung in murder trial of Kiwi Clinton Thinn
• Clinton Thinn arrest: Mate's chilling conversation with US corrections
• Premium - Kiwi serving 25 years for US prison murder appeals conviction
• Aucklander Clinton Thinn appears in US court on murder charge