High Court Reviews Put Killers’ Legal Defenses on Trial

In one case, the gambling habits of the defendant’s lawyer regularly kept him up until 3 a.m. while his client was on trial for his life.

In another, jurors returned a verdict of death after the defense attorney told them the supreme penalty could provide an “escape” for the mentally troubled defendant.

Another lawyer deferred to his client’s request that no evidence be offered in a plea for mercy. And in another case, an attorney spent only 45 minutes conferring with the defendant before he went on trial for first-degree murder.

In these and other cases, the state Supreme Court has faced an issue of growing significance, particularly in death-penalty cases: whether the defendants have been denied their right to effective legal counsel.

In recent years, the question of adequate legal assistance has been largely overshadowed by broader high court rulings that sometimes affect dozens of cases at a time.

But at this point--11 years after California reinstated the death penalty--most of the major questions about law have been resolved and the focus is shifting. Now, lawyers say, the outcomes in the continuing flow of capital appeals will depend increasingly on the narrower questions raised in each individual case--with the effectiveness of the defendant’s trial attorney emerging frequently as the key issue.

The question arose last week as a court-appointed referee found that a death sentence had been imposed improperly on Earl Lloyd Jackson, convicted in the murders of two elderly Long Beach women in 1977. Jackson’s sentence, which had been affirmed previously, now could be reversed if the justices uphold the referee’s conclusion that Jackson’s trial lawyer did not provide adequate assistance.

The claim of ineffective assistance of counsel can involve anything from alleged misconduct or incompetence by a lawyer to a trial judge’s ruling that limits the attorney’s defense of his client--such as denying the lawyer sufficient time to confer with the defendant.

The allegation is being raised often as one of the last resorts in a criminal appeal--but it remains one that courts are hesitant to accept for fear of improperly second-guessing trial counsel.

Some legal experts say that finding adequate counsel, even among California’s more than 100,000 lawyers, is becoming more and more difficult, especially in capital cases. Further, they say, the legal barriers the courts have erected to proving ineffective assistance are imposing an unfair price on defendants.

“The problem is substantial,” said Michael G. Millman, executive director of the California Appellate Project, a private, nonprofit group that assists lawyers in capital appeals.

“There is a small but significant percentage of cases where trial representation is outright substandard. And there’s probably a larger percentage where it is simply mediocre and inappropriate for a case where the defendant’s life is at stake.”

Millman and other critics note that often, even when a court has recognized shortcomings in a lawyer’s performance, it still will not reverse a defendant’s conviction.

For example, in the recent case of Keith Daniel Williams, convicted in the murders of three farm workers in Merced, the state Supreme Court agreed that it was “inexcusable” for the defense lawyer to have read to jurors a psychiatric report that included statements that Williams was prejudiced against Mexicans and that he had said he might kill again if released from prison.

However, the justices refused to overturn Williams’ conviction, saying that in view of the overwhelming evidence, it was unlikely the lawyer’s actions affected the outcome of the case.

Defense lawyers say the problem of adequate counsel is a complex one, going far beyond the question of an attorney’s basic competence.

Capital trials impose a wide range of demands on lawyers, requiring an extensive knowledge of the law from the time of jury selection to the arguments in the final phases of the proceedings.

For example, whether a convicted killer receives death or the alternative penalty of life without parole may depend on whether his lawyer sought witnesses to testify about the defendant’s background or character--factors that might persuade a jury to spare his life.

Even an otherwise skilled and dedicated lawyer may not be providing “effective assistance” if he neglects that part of the case, these attorneys say.

Another impediment to adequate counsel results from the burdens on those defense lawyers--such as public defenders--who must work with heavy caseloads, limiting the time they can spend with individual defendants. And relatively low compensation for court-appointed lawyers representing indigents also serves to discourage able counsel from volunteering for such assignments, lawyers say.

‘Compensation Not There’

“These are long and difficult cases--and they disrupt a law practice and the compensation is just not there,” said Harvey R. Zall, the state public defender.

“No doubt if we increased the compensation to $200 an hour, there would be a long line of competent attorneys ready to take on cases that now provide as little as $35 an hour,” Zall said.

However, some other experts take a different view, saying that by and large trial defense lawyers are providing competent and diligent counsel and that the courts are rightly rejecting what are mostly baseless, last-recourse claims.

“This issue is raised in nearly every case by appellate counsel who are simply ‘shot-gunning,’ raising every issue they can,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a private, nonprofit organization that supports prosecutors in criminal appeals.

“For the most part, the defendants were provided with competent counsel at their trials--and the reason they were convicted was that they were guilty.”

Court rulings over the years have established that the constitutional right to counsel also means effective assistance of counsel--a reasonably competent and diligent effort in behalf of the accused.

Focus on Deficiencies

But the U.S. Supreme Court has held that before a conviction must be overturned, a defendant must not only show that his trial lawyer’s performance was deficient under prevailing professional standards, but also that there is a “reasonable probability” those deficiencies affected the outcome of the case.

The court refused to establish more specific guidelines for evaluating an attorney’s performance, saying it did not want to encourage “a second trial” of an unsuccessful attorney.

Federal and state appellate courts have been generally reluctant to accept claims on ineffective assistance by counsel.

For example, a study by the National Legal Aid & Public Defender Assn. of 4,000 decisions issued in the country in a 13-year period ending in 1983 showed that only 3.9% resulted in a finding of inadequate counsel.

A state law enacted in 1982 requires appellate courts in California to report to State Bar disciplinary authorities any case in which a conviction has been reversed because of misconduct or incompetence by an attorney. But State Bar attorneys say that while they keep no statistics on such referrals, their number does not appear sizeable.

Recent cases that have come before the state Supreme Court have underscored its reluctance to order retrials on the grounds of ineffective assistance of counsel. There have been notable exceptions, however.

Conviction Overturned

In a case decided in July, the justices unanimously overturned the first-degree murder conviction of Antonio Cordero Jr., in the fatal shooting of a Torrance man during a dispute at a gas station in 1982.

The court found that Cordero had been denied adequate representation by his trial counsel, then-Los Angeles County deputy public defender Arnold W. Lieman.

Among other things, the justices cited a court-appointed referee’s findings that Lieman had spent only 45 minutes conferring with Cordero before trial and had “egregiously failed” to pursue at least nine potential witnesses who could have supported Cordero’s claim that he was highly intoxicated at the time of the shooting--a defense that could have resulted in a lesser verdict.

The lawyer, the court found in an opinion by Justice Stanley Mosk, failed to perform as “a diligent and conscientious advocate,” and that Cordero’s conviction must be set aside as a result.

Ephraim Margolin of San Francisco, the lawyer who represented Cordero on appeal, said in an interview the case reflected the result of “assembly line justice,” where clients are denied effective assistance because of the burdens of the criminal justice system.

‘Mass Criminal Defense’

“This shows what an absolute horror can be generated in an era of mass criminal defense,” Margolin said. “A lawyer has to take the time to establish a positive relationship with his client, break down the barriers, so he can get the truth. . . . You can’t just walk in and say, ‘I’m your public defender, did you do it?’ ”

Lieman, who was handling more than 40 other felony cases at the time, declined last week to discuss the case, but did say: “I was in a difficult position; I certainly feel I did the best I could at the time.”

The justices reached a similar conclusion in a decision issued in January, 1987, one of the last rendered under then-Chief Justice Rose Elizabeth Bird. In that case, the court unanimously reversed the conviction and death sentence of Fermin Rodriguez Ledesma, accused in the murder of a San Jose gas station attendant in 1978.

The court noted that Ledesma’s lawyer, Jefferson M. Parrish, had acknowledged that during the trial, gambling “was the most important thing in my life,” and that he had stayed up until 3 a.m. as often as four times a week during the trial, eventually falling $35,000 in debt. Parrish also was accused of but denied using illegal drugs at the time he represented Ledesma.

The justices found that the attorney had failed adequately to investigate the case against his client or research the law that could have aided his defense, as well as improperly failing to object to certain evidence offered by the prosecution.

Other Claims Rejected

In other cases, however, the court has rejected claims of inadequate legal assistance, declining to second-guess tactical decisions made by lawyers during trial.

Last April, the court upheld the death sentence of Stanley Williams, convicted of killing four persons during two Los Angeles robberies in 1979.

The justices held 5 to 2 that a lawyer could properly abide by the defendant’s wishes not to present any witnesses to support a plea for mercy. The court noted that Williams’ lawyer, Joe Ingber, himself had argued to jurors that the defendant’s life should be spared.

And even if the attorney had unreasonably failed to override his client’s wishes, there was no “reasonable probability” that such failure affected the outcome of the case, the court said.

Another ruling, issued in March, also produced a split on the court over whether a defendant was deprived of effective assistance by the trial tactics of his lawyer. The court, in a 6-1 vote, upheld the death sentence of Melvin Meffery Wade for the torture slaying of his 10-year-old stepdaughter in San Bernardino in 1981.

The court majority rejected the claim that Wade had been denied adequate counsel when his lawyer, S. Donald Ames, acknowledged the “heinous nature” of the crime and concentrated on an unsuccessful claim that Wade was insane. Ames told the jury that if death were imposed, “You may be also giving an escape, once again by analogy the gift of life, to Melvin Meffery Wade to be free from this horror that he and only he knows so well.”

Taken Out of Context

Ames explained later that those statements had been taken out of context and that he had been trying to win mercy for Wade by pointing to his troubled mental state. Wade himself had testified he would welcome death because God knew a “different personality” had entered his body and actually committed the crime.

The majority, in an opinion by Chief Justice Malcolm M. Lucas, agreed that the lawyer’s argument was a reasonable one aimed at gaining sympathy for his client. In view of the overwhelming evidence, there was little choice but to acknowledge guilt and concentrate on a mental defense, Lucas said.

In dissent, however, Justice Allen E. Broussard said the attorney had “virtually commended” Wade to the gas chamber.

“A defense attorney who argues death as ‘an escape’ and ‘the gift of life’ for his client is not an adversary of the prosecution,” Broussard said. “Rather, he comes very close to being . . . a second prosecutor.”