Staking His Future on a Legal Longshot

Eric Ellington does not seem like a formidable courtroom advocate.

He occasionally asks the judge for advice on his legal arguments. His motions are written in pencil on lined paper. And he can only use one hand during proceedings, because the other one is handcuffed to his chair.

Yet Ellington, a 38-year-old recovering crack addict who never attended college but acts as his own lawyer, has done what many defense attorneys only dream of: He has beaten the Los Angeles County district attorney’s office in a three-strikes trial--twice.

And, in yet another trial scheduled to begin today, Ellington is shooting for a legal hat trick.

The district attorney’s office has charged Ellington, a convicted sex offender, with failing to register with police for the last four years, including the time he was in jail awaiting a previous trial. Once again, if he loses, Ellington faces a mandatory 25-years-to-life sentence in state prison under California’s three-strikes law.

Charges of Retribution

Ellington argues that the latest charges are retribution for his courtroom victories and subsequent boasts about them on a local cable access show, as well as in his unpublished book, “Three Strikes I’m Not Out.”

“When I finish with them this time, there will be no doubt they should have left me alone,” he said from county jail where, lacking the money to post bail, he is preparing his latest case. “I’m holding all the winning cards.”

In fact, Ellington already is working on a new book, titled, “Four Strikes I’m Still Not Out.”

Statistically, the odds are against him. The county district attorney’s office has a 92% win record in felony cases, and statewide, 84% of all trials end in guilty verdicts. To some, Ellington’s tale highlights an imbalance of power in the courts.

“It leads one to the sort of troubling question that if he was indeed innocent, was an innocent man facing a life sentence,” said Vince Schiraldi of the Center for Juvenile and Criminal Justice. “It makes us ask a lot of questions about the great powers we give to prosecutors on low-level cases.”

A father of two young children who has bounced from job to job and petty crime to petty crime while battling his addictions, Ellington is a well-known character in the Pasadena courthouse, where he chats up clerks, judges and prosecutors between his many appearances. It was during one such visit in March that he said his latest troubles began.

Ellington said he was talking about his book to a clerk in the Pasadena courthouse when he drew a glare from Deputy Dist. Atty. Tuppence McIntyre, who Ellington alleges mumbled something about his conviction for rape years before. The next week, when he came to court to collect a certificate allowing him to attend an outpatient drug program, Ellington was arrested and charged with failure to register his whereabouts with police.

A district attorney’s investigator has testified that McIntyre requested the investigation of Ellington’s status that led to his current prosecution.

Ellington’s former fiancee, Pasadena criminal defense attorney Enid Ballantyne, said McIntyre told her last year that she knew Ellington was a registered sex offender, having been convicted of rape 22 years ago.

“If they put him away righteously for drug possession, breaking into someone’s home, I understand that, that’s a consequence of his actions,” Ballantyne said. “But for them to say, ‘Oh, he wasn’t registered, we’re going to be hyper-technical. . . .’ I think it’s more a game of ‘Gotcha.’ ”

McIntyre refused to comment, saying she does not discuss pending cases.

Required to Register as Sex Offender

Patricia Wilkinson, the deputy district attorney prosecuting the latest case, said Ellington alone is to blame for his new problem.

“If he didn’t violate the law in the County of Los Angeles,” she said, “we wouldn’t be prosecuting him.”

At his May preliminary hearing on the latest case, Ellington’s quiet objections were overruled, as a Pasadena Police Department records official testified that Ellington last registered his address with police in 1995, and has since moved.

As a sex offender, Ellington is required by law to register with law enforcement annually and to inform police whenever he moves.

Ellington argued that he should not be held for trial and that charges should be dropped because he said he was never notified of the requirement and has been in constant contact with police and prosecutors for years.

“I never made any attempt to flee the law or authorities,” Ellington said, his voice rising.

But Municipal Court Judge Constance Serio was not swayed and ordered Ellington held over for trial, setting bail at $500,000.

Ellington turned to Wilkinson. “Patricia,” he said, “you’re a good lawyer.”

Wilkinson replied: “I consider that very complimentary from someone who’s beaten us twice.”

Ellington has litigated all his cases from county jail because he was unable to post bond before trial. Like any other criminal defendant representing himself, he faces tough obstacles. He must master a legal system that sometimes baffles even law school graduates. He clashes with practiced prosecutors, veterans of hundreds of similar cases, who can draw upon all the resources of local police and the district attorney’s office. Other inmates in the county jail occasionally steal his legal papers.

Those are some of the reasons that defendants who act as their own attorneys--known as representing themselves in pro per--usually fight a losing battle.

“You don’t see it very often,” defense attorney Gerald Chaleff said of defendants acting as their own lawyers. “And in the rare cases you do, it doesn’t help the person.”

But Chaleff and another noted Los Angeles defense attorney, Harland Braun, said that in rare cases, a defendant can get a boost from acting as his own lawyer.

“Our system is so dehumanized,” Braun said. “But when you’re pro per, you’re forced to deal with the person as a human being. The jury’s dealing with a human being, not just some guy sitting next to the public defender.”

Smart, confident and smooth-talking, Ellington has been able to do just that in his trials. But though he has beaten the longest odds in the courtroom, he has failed on the streets.

“One of the saddest things about him,” Ballantyne said, “is he’s a terrifically bright guy, and he never had a chance.”

Ellington grew up the second of five brothers in a housing project on Chicago’s South Side. He was the class clown--the winner of all the spelling bees but too unruly to do well in school. “I just got bored in class,” he said. “I always wanted special attention.”

As a boy, Ellington said, he fell in with the wrong crowd, ditching school to take swigs of older kids’ beers and swilling wine mixed with Kool-Aid by the time he was 11.

At age 16, Ellington claims he was beaten up by Latino street kids while walking his dog. He and his friends, armed with a baseball bat and knives, went looking for vengeance and singled out a 15-year-old Latina they did not know in a neighborhood park.

Ellington said his friends began beating and raping the girl, but he contends he took no part in the attack. Yet after police arrested him, Ellington--at the urging of his public defender, he said--pleaded guilty to two counts of rape, a deal he said he now regrets.

“I never, ever raped the girl,” Ellington said. “But I still was wrong, because I could have stopped it.”

Ellington spent six years in an Illinois state prison, improving his writing skills by copying college textbooks from the library. His cellmate was an attorney who began to educate Ellington on legal fundamentals. Ellington also began reading the works of the inspirational Mideastern poet Khalil Gibran.

“I wanted people to see me as an intelligent person,” he said. “That was the way I’ve always perceived myself--as a distinguished person.”

But prison wasn’t all poetry and textbooks. Cheap wine was readily available, and Ellington sank deeper into alcoholism. He joined a prison gang and had its insignia tattooed across his chest. He emerged from prison at age 23, but was back a year later after a burglary conviction.

After his second stint in prison, Ellington moved to Southern California to join his family in Pasadena and to try and straighten out his life.

Instead, Ellington started dealing crack cocaine and then became addicted to it. He almost died after swallowing a ball of crack to hide it from police; he ended up so addicted he recalls hauling a refrigerator across town one night to trade for crack.

Currently in recovery, Ellington said, “I would not wish something like a cocaine addiction on my worst enemy.”

A String of Minor Offenses

Over the years, in fact, Ellington has hopscotched from rehabilitation programs to county jail for petty crimes, such as receiving stolen property or driving without a license. He also did two years in state prison for burglary.

Ellington weathered that stay in prison, and the birth of his daughter Tamirah, who was born addicted to crack and required intense medical treatment at Huntington Memorial Hospital. He helped nurse the girl to health and was raising her in Pasadena when he was arrested July 18, 1994, sitting in a stolen Chevy Cavalier near MacArthur Park.

During a police lineup, the vehicle’s owner identified Ellington as the man who had stolen the car from his house that morning. Ellington was charged with auto theft.

The charge took on extra significance with the recent passage of California’s three-strikes law. Because of Ellington’s prior felony convictions for rape and burglary he automatically would face 25 years to life if convicted of the car theft, a third felony.

Citing the strength of the prosecution’s case due to the identification in the police lineup, Ellington’s court-appointed public defender urged him to plead guilty to lesser charges and accept a 32-month prison sentence to avoid lengthier incarceration. But Ellington insisted he was innocent, cutting off his lawyer in court.

Then, at Ellington’s preliminary hearing, his younger brother Darrick burst into the courtroom and confessed to the car theft. Eric had been sitting in the car waiting for his brother and was unaware it was stolen, Darrick Ellington told the judge before the bailiff removed him from the courtroom.

When Eric Ellington was ordered to stand trial despite his brother’s confession, he petitioned to act as his own attorney. The judge warned him of the old legal saying: “He who acts as his own lawyer has a fool for a client.”

Ellington wasn’t swayed. He hit the law books, stuffing toilet paper in his ears to shut out the din of county jail.

Soon, Ellington was writing out legal motions in longhand, demanding sanctions against the district attorney’s office for failing to comply with his discovery motions and subpoenaing the judge who presided over his preliminary hearing to testify about his brother’s confession.

During the trial, Ellington called Darrick to testify, and picked apart police reports to show how the clothes he was wearing when he was arrested were subtly different from those the thief reportedly had worn.

After deliberating for two days, the jury acquitted Ellington.

As the judge scolded the jurors for letting the defendant go, Ellington rushed to his infant daughter, whom he had not seen in his seven months in jail, and embraced her.

“He did a good job,” said Pauline Skinner, a juror who had initially leaned toward conviction but ultimately voted to acquit. “He’s good at talking and at times you even feel sorry for him.”

Robert Nishinaka, the deputy district attorney who prosecuted the case, said he had believed it was solid. “I thought the evidence was there,” he said. “Any time you have an ID case they’re not perfect.”

Sees Justice System in Different Light

After the acquittal, Ellington began talking to Nishinaka about going to law school. The prosecutor, who speaks fondly of Ellington, said he warned Ellington that with his record he should simply try to keep his life in order.

But Ellington’s life was again thrown into chaos on Thanksgiving Day 1997, when Pasadena police arrested him for a crime that a jury would find he did not commit.

This time, the accusation was that Ellington had broken into the office of another participant in his recovery program and stolen a television and other appliances worth $825. Again, Ellington faced 25 years to life in prison if convicted.

Ellington argued that the purported victim cooked up the story after Ellington rejected his sexual overture. And again Ellington’s case got a boost from one of his brothers--this time his older brother Jerry, who testified that he had been drinking beer with Eric and watching a video of “Jurassic Park 2” the night the burglary occurred.

After Ellington spent five months in jail, a Pasadena jury acquitted him of the charges after just one day of deliberations.

“I was just really surprised that they would take me to trial in that case,” Ellington said. “It was just this guy’s word against mine.”

The prosecutor on that case, Deputy Dist. Atty. Kimberly Leong, did not return multiple calls seeking comment.

Before he began representing himself, Ellington said, he was convinced the American justice system was racist and hopelessly stacked against him. But now he believes in the system--and in his chances at another acquittal--because of his faith in the judgment of jurors such as the ones who freed him during previous trials.

“The people are what make the system work,” he said in a jailhouse interview. “I’m proud to be an American because of people like those jurors.”