Looking for loopholes in death sentence

Incompetent defense, technical flaws contribute to overturned convictions.

By FRED LUDWIG
Californian staff writer
e-mail: fludwig@bakersfield.com

Dan Ocampo / The Californian Willie Leo Harris talks with Deputy Public Defender Gael Mueller during his murder trial in 1998.

Delora Harris briefly left the discussion of her brother's death sentence and returned with a cardboard box full of court documents. She dropped it on the floor with a thud.

Then she got another box. And another.

The documents are only a partial set of transcripts of hearings from Willie Leo Harris' death penalty trial. They are split in makeshift fashion into small reams held together by rubber bands.

To Harris' supporters, the humble set of documents is the heart of their crusade to clear Harris of the rape and murder convictions that sent him to Death Row in 1999.

When they get the time, supporters sort through the documents, highlighting important passages.

They are hoping to glean enough evidence to cast doubt on Harris' conviction for the stabbing death of 22-year-old Cal State Bakersfield student Alicia Corey Manning.

Stunning reversals in other states have given Harris' supporters hope.

"I know God hears me," said family friend Earnestine Harper. "I know by some means or another, he will be set free."

There are 23 Kern County inmates, including Harris, currently on Death Row.

Over the years, the sentences of six inmates have been overturned (one man's sentence has been reversed twice) for a range of reasons from technical flaws to incompetent defense.

No Kern sentences were reversed based on innocence.

Many of the inmates whose death sentences were reversed have been retried, and some have even received the death sentence a second time.

In other parts of the country, DNA testing or other new evidence has freed some Death Row inmates.

Fear of executing the innocent has halted death sentences in one state.

Illinois Gov. George Ryan, a death penalty supporter, last year issued a moratorium on executions in his state because of what he called a "shameful" record of putting innocent people on Death Row. Ryan said 13 condemned inmates in Illinois have been exonerated since 1977 -- compared to 12 who were executed.

No California Death Row inmates have been cleared by DNA, said California Department of Corrections spokeswoman Terry Thornton. She said one inmate is trying to exonerate himself using DNA testing, but she did not know the status of that effort.

Race matters

Alicia Manning

Harris has yet to be appointed an attorney for his appeals, so hasn't advanced any arguments for a reversal of his sentence.

But his backers contend Harris is innocent and that race played a major role in his conviction.

A racial breakdown of Kern's 23 Death Row prisoners shows more than 60 percent are white. Five, or 21.7 percent, are Latino, and three, or 13 percent, are black.

According to 2000 Census figures, whites in Kern made up 49.5 percent of the population, Hispanics 38.4 percent and blacks 5.7 percent.

Some studies suggest the race of the murder victim, not the defendant, plays a more significant role in whether the death penalty is sought.

A Cal State Bakersfield study completed in January 2001 reviewed 128 Kern homicide cases since 1990.

Two-thirds of the victims were minorities. But of those cases in which prosecutors sought execution, 73 percent of the victims were white.

In the Harris case, Manning was white and Harris is black.

Other studies have shown similar patterns nationwide, said Pasadena capital appellate attorney David Evans. The death sentence is more likely to be sought when the victim has status in society, and race can be an important component of status, Evans said.

Kern County District Attorney Edward Jagels denied race affects capital cases.

Courts around the country have rejected appeals based on similar studies, which mean nothing without reviewing the circumstances of the crimes, Jagels said.

Judges have concluded that certain types of slayings, such as during drug deals, are more likely to include minority victims, Jagels said. He said such crimes are less likely to end in a death sentence than, for example, the murder of a bystander during a bank robbery.

The racial makeup of juries also has been criticized.

Kern death penalty juries often have few or no black jurors, said Bakersfield defense attorney Michael Dellostritto. Blacks disproportionately oppose the death penalty, which often disqualifies them from death penalty panels, Dellostritto said.

There was one black on the jury that sent Harris to Death Row in 1999.

"He should not be on Death Row," Harper said. "He's there just because he is black, and he knew the woman."

Harris supporters continue to hold monthly prayer vigils for Harris.

Afterward, they often discuss plans for his appeal.

By marking the transcripts, supporters hope to help his attorney some day. For now, the task refreshes their memories about the case.

They talk in passionate and precise detail about evidence they believe exonerates Harris.

They point to a witness who saw somebody walking from Manning's apartment with a television about the time of the murder, and said that person wasn't Harris. That witness later said she wasn't sure it wasn't Harris.

Harris' first trial ended in 1998 with a hung jury. He was tried again and sentenced the next year.

During sentencing, the trial judge said Harris' actions -- not his race -- were the reason for the sentence.

The defense had argued Manning had consensual sex with Harris, then was killed later by someone else.

Her stolen car was found burning three-tenths of a mile from Harris' home. And Harris gave conflicting statements to police.

"There is no doubt in my mind," said the victim's father, Lee Manning. "He is definitely guilty."

Incompetent defense

None of the six Kern death sentences overturned were reversed based on pleas of innocence.

In fact, even at the trial level more than one-third of Kern's Death Row inmates did not contest their role in the killing. Rather, they argued their crime was of a lower level than murder, such as manslaughter, which doesn't bring the death penalty.

Felipe Sixto, convicted in 1982 of killing a 5-year-old, said someone slipped the drug PCP into his beer and he was not in his right mind at the time of the murder.

But the necessary tests weren't done, costing Sixto his most promising defense, the California Supreme Court concluded in its 1989 reversal of his death sentence.

Justices also found repeated communication problems between his attorneys. Bakersfield attorney Eugene Lorenz was absent for several days during jury selection, leaving the case to the other defense attorney, who had joined it only two weeks earlier, the ruling states.

Sixto was convicted again in 1990 but avoided a second death sentence. He is serving life in prison without parole.

Lorenz, who handled so many capital cases he earned the nickname "Dr. Death," said he did not bungle the case. He didn't answered the allegations because he didn't want to hurt Sixto's appeal chances, he said.

Kern's other death penalty reversals were won by various means.

* Robert Garceau's 1987 death sentence for stabbing to death his girlfriend and her 13-year-old son was reversed Wednesdayfor improper jury instructions. Garceau may face retrial. The reversal did not affect a sentence of 33 years to life, which he is serving for a separate murder.

* David Balderas' 1981 death sentence was reversed in 1985. The state Supreme Court ruled it was not an intentional killing. Balderas had asserted the accidental discharge of his gun killed a grocery store executive in 1979 during a robbery attempt. The reversal meant Balderas instead was sentenced to 27 years to life.

* Carl Hogan's 1979 double murder conviction was reversed in 1982 after justices said his admissions were gained improperly through "psychologically coercive brainwashing" by Kern sheriff's deputies -- lies about their evidence and their suggestions that he committed the crime while mentally ill and then blocked it out of his memory. He was convicted a second time and, in 1983, was given a sentence of life without parole.

* Richard Galvan Montiel's death sentence, handed down after a 1979 trial over the slashing death of a 78-year-old man, was overturned in 1985 because of faulty jury instructions. But prosecutors won a second death sentence against him the following year.

* David Leslie Murtishaw first received death in 1979 for the shooting deaths of three students. Murtishaw has won two reversals. He was sentenced to death a second time in 1983. His second sentence was reversed June 26 this year because of improper jury instructions. Kern prosecutors said they likely will retry him.

Defense targeted

Poor defense work is a common complaint in a number of Kern death cases still meandering through the appeals process.

The defense for Teddy Brian Sanchez waived a jury trial and presented no evidence, said appellate attorney Nina Rivkind. Sanchez was convicted and sentenced to die in 1988 for his role in the deaths of three people in two separate incidents. Rivkind said the judge learned during trial Sanchez' defense attorney was facing disbarment for mishandling funds of two Los Angeles clients.

Sanchez' appellate claims were rejected by the California Supreme Court and are now being litigated in U.S. District Court.

In another 1988 Kern case, attorneys for Rodney Berryman did not get him examined for possible brain damage, even though that common step was suggested by their own medical experts, said appellate attorney Charles Bonneau.

The state Supreme Court blocked such tests but federal District Court judges now reviewing his challenge allowed the tests this year. The tests showed Berryman does indeed have a mental disorder, Bonneau said. A defendant's mental state at the time of the killing can affect whether he qualifies for the death penalty.

Accusations of poor performance by the defense are not just common, they're almost a requirement at the appellate level, said Jagels.

"It's an appellate attorney's job to suggest that the defendant's trial attorney was incompetent and the prosecution was unethical," Jagels said.

Although horror stories have surfaced in other states about unbelievably poor representation -- attorneys drunk or asleep during trial -- Kern offers competent attorneys for death penalty defendants, officials said.

Most capital defendants accused in Kern County are represented by publicly funded attorneys, either in the county Public Defender's Office or through the Indigent Defense Program, which takes cases that deputy public defenders can't.

Officials at both offices said the cases are handled by a select group of attorneys.

Kern County Public Defender Mark Arnold said his office has seven attorneys qualified to handle death penalty cases, all with heavy experience in homicide cases. Those attorneys attend death penalty seminars to hone their skills, Arnold said.

Six Kern IDP attorneys are approved for capital cases. They have met specific requirements such as having handled at least 50 felony trials, said program Administrator Robert Young.

The Kern court grants defense attorneys enough funding for a proper defense, several Kern attorneys said.

For example, the heavily litigated case over the carjacking and killing of Arvin High School football player Chad Yarbrough cost the county $300,000 for defense attorneys. The case ended last July with a death sentence for Juan Villa Ramirez, Kern's latest addition to Death Row.

But it is unclear whether capital cases in Kern County have always been that well-funded. Court officials said they do not have figures for capital defense spending from other cases.

In general, many California defense attorneys simply weren't prepared for the complex cases in the 1970s and early 1980s, shortly after the death penalty was reinstated, said attorney Evans.

Reversals: Is system working?

Two out of every three death sentences in the United States are overturned on appeal, according to a Columbia University School of Law study of capital appeals released last year. Death sentences in the United States are "fraught with error that seriously undermines their reliability," the study states.

"Our 23 years worth of results reveal a death penalty system collapsing under the weight of its own mistakes," the study led by professor James Liebman states.

The most common errors were generated by incompetent defense lawyers who missed important evidence and police or prosecutors who hid evidence, the study concluded.

The Columbia study is deceptive in that it includes many reversals caused not by bad trials, but confusion over the rules governing death penalty cases in the 1970s and 1980s, said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, which supports the death penalty. Many convictions that complied with rules in place at the time of trial were overturned when courts later changed the rules, Scheidegger said. Since 1987, cases have been upheld at higher rates, he added.

And reversals in general are not a failure of the system, but a result of the checks against wrongful execution, said foundation President Michael Rushford.

"The system is designed to err on the side of giving the defendant the extra chance," Rushford said.