Appeals Court Reverses Man’s Death Sentence

A federal appeals court Monday reversed the death penalty of a San Bernardino man convicted more than a decade ago of the brutal murder of his 10-year-old stepdaughter, after concluding that the man’s defense lawyer had virtually invited the jury to send his client to the gas chamber.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals in San Francisco ruled that Melvin M. Wade’s attorney had provided grossly ineffective representation, violating Wade’s constitutional rights.

In particular, the majority cited San Bernardino attorney S. Donald Ames’ closing argument during the trial, in which he said that Wade couldn’t “live with that beast from within any longer” and that a death sentence might be “the gift of life.”

Ames’ argument “effectively relieved the jury of any doubt or anguish it might feel in sentencing Wade to death,” Judge William C. Canby Jr. wrote. The judge said Ames had no legitimate reason to argue that “executing Wade would be an outcome favorable to Wade.”

Canby, joined by Appellate Judge Stephen Reinhardt, said Ames also failed to introduce evidence that Wade had been physically and sexually abused as a child, “a potentially forceful mitigating circumstance.” Moreover, Canby said the only reason Ames offered for saving Wade’s life in his closing argument was to enable doctors to do a post-mortem examination of this “human guinea pig.”

“Had Wade received a competent defense, a reasonable probability exists that the jury would have returned a sentence of life imprisonment without the possibility of parole” rather than a death sentence, Canby wrote.

Reinhardt added: “Few capital defendants can engage the services of a Clarence Darrow. But surely they are entitled to more than the wholly ineffective representation Wade received.”

The majority judges said that even if Ames had presented an adequate defense, Wade’s sentence had to be reversed because the trial judge gave deficient instructions to the jury on the elements of “torture murder,” the crime for which the death penalty was imposed.

Reinhardt agreed with Canby on both grounds for reversal and would have gone further, contending that the conviction should be reversed as well because of Ames’ inadequate performance during the first phase of the trial.

But Appellate Judge Stephen S. Trott wrote a vigorous dissent, saying that the jury instructions were sufficient and that Wade’s lawyer had presented an adequate defense, including a legitimate but unsuccessful effort to garner juror sympathy for his client.

“Wade’s counsel did the best he could with the little he had,” Trott wrote. He said a death sentence for Wade was virtually assured from the moment Wade turned himself in to police and said: “Here I am. I am the one you want. I guess I hit her too hard. I guess I hit her too hard.”

On April 10, 1981, Wade killed Joyce Tolliver in a brutal assault after accusing her of smelling and not properly washing herself, according to trial testimony. Over a 22-hour period spanning two days, Wade punched her, hit her with a board, confined her in a duffel bag, slammed her head into a wall with sufficient force to penetrate the wall and finally stomped her to death, shouting that he was “Michael the Archangel” killing “a devil.”

At a 1982 trial, Ames introduced testimony that an alternate personality called “Othello” was living inside Wade’s body and that “Othello” actually tortured and killed Tolliver. But jurors rejected this contention and others, finding him legally sane.

After several years of state appeals, Wade’s death sentence was reversed by the California Supreme Court in 1987. But the sentence was reinstated the following year by the same court after Chief Justice Rose Bird and two other liberal justices had been turned out of office by the voters.

Wade, now 37, then began his federal appeals, which initially were spurned by federal District Judge Manuel L. Real in Los Angeles, setting the stage for Monday’s ruling.

Deputy California Atty. Gen. Pat Zaharopoulos said the agency is likely to ask the 9th Circuit for a rehearing by a panel of 11 judges. Failing that, the state is likely to appeal to the U.S. Supreme Court. “It’s really disappointing that we lost” the jury instruction issue, she said.

There currently are 383 people on Death Row in California. “Prior to today, Wade was in the group of cases that would be at the top of the list” for execution, said Dane Gillette, the attorney general’s death penalty coordinator.

The practical effect of the ruling is to delay Wade’s execution for at least months and perhaps to ultimately void it. If the decision stands, he would be entitled to a new trial on whether the murder was intentional and involved the infliction of torture, said Deputy State Public Defender Donald J. Ayoob, who represented Wade on appeal.

“The judges left the conviction of first-degree murder undisturbed, but they removed the special circumstance that makes the case a capital crime. I’m quite pleased with the result,” Ayoob said.

Canby said the trial judge’s instructions on torture murder improperly expanded its definition and may have influenced the jurors’ decision.

Trott dismissed that contention and also challenged the majority on Ames’ competence. “Counsel never argued that executing Wade would be a favorable outcome. Counsel was resolutely pursuing his ‘the demon did it’ theme, and the idea that Wade deserved sympathy and compassion, not death,” Trott wrote.

During the penalty phase of the trial, Ames had Wade testify in the voice of “Othello.” Canby said the profane testimony invited the jurors to issue a death sentence. But Trott said the testimony was a strong showing of how mentally disturbed Wade was.

For his part, Ames said he was pleased that the death penalty had been reversed but added that he was disturbed at the majority’s assessment of his performance: “They interpreted what I argued as an invitation to put Melvin to death. Nothing can be further from the truth. Never at any time during the trial did I believe that the death penalty was warranted because I had firsthand knowledge that Melvin was a very sick person.”