Legal Rules May Have Wrong Man in Prison

When the fighting was over, one young man had been shot in the head and Ernesto Avila, by his own account, was running away with a gun in his pocket, fleeing the crowded Lynwood park before the police arrived.

Avila got away that afternoon in 1990. But his brother, Jesus, was arrested and charged with attempted murder.

Several witnesses say Ernesto Avila almost immediately tried to set the record straight, telling a private investigator he had pulled the trigger, and then acknowledging the same to a lawyer. But neither the lawyer nor the private investigator--both of whom were bound by confidentiality rules--told anyone about Ernesto Avila’s admissions. When the case came to trial, the jury did not hear anything about Ernesto’s possible involvement, and Jesus was convicted.

The Avila case has thrust the two brothers--both of them gang members who had had scrapes with the law--into a pair of intense legal debates, testing the limits of confidentiality agreements between lawyers and their clients and stoking a long-running controversy about whether judges are too unwilling to reopen criminal cases when new evidence emerges.

At the center of one of those controversies is Jesus Avila’s original lawyer, George D. Denny III, a respected Los Angeles criminal defense lawyer, who learned early on that Ernesto Avila might be the shooter. But Denny never told anyone because he represented Ernesto in another matter and believed that he could not be a party to implicating him--even if doing so might help clear his other client, Jesus.

While Denny wrestled with his ethical quandary, Ernesto and the Avila family gambled. Rather than come forward and testify for his brother at the trial, Ernesto kept his peace, hoping that Jesus would win his freedom anyway.

“We thought Jesus would be acquitted and Ernesto would not have to go to jail either,” said Christine Avila, their mother. “Maybe that was the wrong thing, but that was what we hoped for.”

They were to be bitterly disappointed.

“I thought it was a joke,” Jesus Avila said in an interview last week from prison. “Now, the way this is going, it looks like I’m never going to get out.”

When the case came before Superior Court Judge William R. Pounders after Jesus Avila’s conviction, the judge heard sworn testimony that Ernesto Avila was the guilty party, both from Ernesto and several other witnesses. Pounders declined to order a new trial for Jesus, saying later that he did not find Ernesto’s admissions credible. Instead, Pounders ruled that Jesus’ trial lawyer did a competent job with the information he had at the time and that Jesus received a fair trial.

The result: Ernesto, who says he pulled the trigger, is free, while Jesus, who maintains his innocence, has spent nearly four years in some of the nation’s toughest maximum security prisons for a crime that many people today doubt he committed.

“We, like doctors, like other people, sometimes make a mistake,” Denny said of Pounders’ decision. “Sometimes those mistakes can be very costly.”

*

Jesus and Ernesto Avila were guests at a baby shower in Lynwood’s Ham Park on Aug. 19, 1990. Pink and blue balloons floated from the benches and trees. A table was piled high with gifts.

During the party, a group of young black men wandered through the park and were confronted by Jesus and some of his friends, members of a Latino gang known as the Young Crowd.

At first, the two groups talked about their tattoos, but then a large group of Latino gangsters surrounded Demetrius Kidd and his friends, some of whom were members of a rival Crips gang. As they turned to run, someone fired several shots. Kidd was hit behind the left ear and fell to the ground.

Sheriff’s deputies arrested Jesus Avila at the scene, and Kidd identified him as the attacker. Another witness, Romel Johnson, also testified that Jesus Avila was the shooter.

But there were other witnesses who contradicted them. Several guests at the party--including some with no apparent reason to lie for Jesus Avila--recalled that he was far away from the area of the park where the shooting occurred. They remembered him hitting the ground when the shots were fired.

Some of those witnesses went further. They told Denny’s private investigator, David Lynn, that Ernesto had been the shooter. At a hearing on Jesus’ appeal, Lynn described some of those conversations under oath.

“Did anyone else tell you that Ernesto was the shooter while you were the investigator on the case?” Barry Levin, one of Jesus’ lawyers, asked.

“He did,” Lynn said. “Ernesto.”

Lynn warned Denny that they might have a problem, so the lawyer called Ernesto in for a meeting. According to testimony from several witnesses at the hearing, Denny questioned Ernesto and confronted him with the information that he was the shooter. Although Denny cannot recall the exact words from that meeting, he left convinced that Ernesto, not his brother, had fired the gun.

“I had no doubt whatsoever that Ernie did it based on the conversation that we had,” Denny said. “He was telling me that he did it.”

Under most circumstances, a lawyer would be overjoyed to get such information. After all, Ernesto’s admissions would greatly undermine the prosecution case against Jesus. A jury would almost certainly have a tough time convicting one brother of a crime that the other brother admitted committing.

But no jury ever heard Ernesto’s story. Instead, Denny told the court that he had a conflict of interest, and he withdrew from representing Jesus, never telling the lawyer who replaced him why he had been forced to make that decision.

“Quite frankly, I was in a quandary,” Denny said. “Because Ernie was my client in another matter, I had an absolute obligation to him. . . . Knowing what I did know at the time, I don’t feel that I could have done anything else.”

Some legal experts fault Denny for not sharing the information with the lawyer who took his place. But most agree that the lawyer-client relationship is so sacrosanct that Denny was obligated to keep Ernesto’s secrets, even if that worked against the interests of Jesus.

The California Rules of Professional Conduct strictly prohibit any lawyer from disclosing confidential communications from a client. There are a few exceptions noted in the code--in cases where a client obtained the services of a lawyer to commit a fraud, or when the lawyer believes disclosing information is needed to keep the client from committing a crime. But for the most part, the rules are unyielding.

“Under the rules of professional conduct, you can’t tell anybody, even if it is to the value of another client,” said Laurie Levenson, a Loyola law school professor. “You can just never do that.”

Lynn’s handling of witness statements implicating Ernesto is more problematic. Those interviews are not covered by the attorney-client privilege because they did not involve conversations with the client.

Nevertheless, Lynn never turned over the details of those interviews to anyone. In fact, he made a point of not taping them and not writing them down because he did not want to be a party to implicating Ernesto.

“This was a problem for me,” Lynn said in an interview last week from San Salvador, where he is working with a United Nations commission investigating death squads. “I’d been an investigator for less than a year, and I was being told to protect both their interests. I couldn’t do it.”

So Lynn sat on the information. When the new lawyer took over for Denny, he got some files from Lynn but nothing indicating that the real shooter might be Ernesto.

The new attorney tried to win an acquittal for Jesus by putting on evidence that he was on the other side of the park. Faced with other witnesses who identified Jesus as the shooter, the jury voted to convict.

On May 31, 1991, Jesus was sentenced to life plus eight years in prison.

*

Two years later, Jesus got a second chance. This time, Ernesto came to his defense.

The court of appeal had reviewed Jesus’ plea for a new trial. Based on it, the court ordered a special hearing, and Pounders was picked to handle it.

As they prepared for the hearing, Nancy Coan and Levin--the two lawyers who represented Jesus in his appeal--began canvassing witnesses. Several told them that Ernesto was the guilty party, so they met with him. He admitted it and said he would be willing to waive the attorney-client privilege that had bound his lawyer to silence for two years.

But Ernesto continued to hedge about testifying. According to his family and his brother’s lawyers, he was frightened about the prospect of admitting his guilt under oath.

In fact, Ernesto continued to balk right up to the moment that the hearing began. Then, seeing his brother in court, Ernesto decided he would tell his story. Levin called him to the stand, and Ernesto, for the first time, told a judge that he was the shooter.

Describing the events of that day, Ernesto told of a fight between his homeboys and the others and gave a disjointed account of people running in various directions.

“And then I reached in my pocket, and I pulled out a handgun, and I shot a couple shots at them,” he said.

He equivocated about some details, claiming that he could not be totally sure that his shots struck Kidd because he never saw Kidd fall. But he testified that he fired the only shots in the park that day, and he acknowledged that his admission could be used against him.

“Do you have any reason to come into court and, under oath, lie and say that you committed a serious crime that you did not commit?” Levin asked.

“No, there is no reason for me to do that,” Ernesto responded.

Having heard that testimony--as well as the sworn testimony of the lawyer and private investigator and a number of other witnesses--the judge nevertheless declined to recommend that Jesus receive a new trial. Instead, Pounders found that Jesus was competently represented at trial and that Ernesto had missed the opportunity to come forward at the time.

Christine Avila was dumbfounded.

“Somebody comes forward in a court of law, knowing the risks, and says he committed a crime,” she said. “He handed them all this evidence, and the judge sat there and didn’t believe him. What more did he want?”

Many legal experts note that it is extraordinarily difficult to get judges to order new trials based on new evidence. In this case, the battle was made more difficult by the fact that Pounders only was asked to assess whether Jesus’ trial lawyer had effectively represented him. But Levin stressed that no one was asking Pounders to free Jesus, merely to grant him a new trial so that a jury could assess the evidence against him in light of Ernesto’s admissions.

Other legal experts sympathize with Levin’s frustration.

“Ten years ago, I was co-counsel in a case involving a 16-year-old named Gordon Castillo Hall,” said Gerald F. Uelman, dean of the Santa Clara University Law School. Hall was convicted of first-degree murder but on appeal his lawyers presented evidence that somebody else had done the shooting. The court threw out Hall’s conviction and the district attorney then dropped the case, Uelman said.

“I’m convinced that if that happened today, Gordon Hall would still be in jail,” Uelman said. “Courts don’t have time to do justice anymore.”

In an interview last week, Pounders acknowledged that it is difficult for appellate courts to examine new evidence, but he explained that in the Avila case he did not find Ernesto credible.

“When this case began, my thought was, ‘God help us if the process has convicted the wrong person,’ ” Pounders said. “I felt it was my job to look at this with wide eyes and almost a feeling of terror that the wrong person might have been convicted.”

In fact, Pounders said he felt exactly that as the evidence began coming in. But as more witnesses testified--a total of 23 took the stand in an extensive hearing--he began to doubt Ernesto’s story more and more.

Ernesto’s admissions, Pounders said, were evasive and inconclusive--”dancing in the shadows,” the judge termed them--and he concluded that they were “an attempt to spring the actual criminal loose.”

Asked whether she is convinced that the right Avila brother is in prison, prosecutor Eleanor Barrett demurred.

“Frankly, it’s irrelevant what I believe,” she said. “What’s important is what the judge believes.”

Joseph P. Furman, a deputy attorney general who handled the Avila case on appeal, stressed that prosecutors have “an overriding duty to see that justice is done” and added that Avila and his lawyers have had every opportunity to present the facts of their case.

“The issue was fully aired before a Superior Court judge who was sitting as a referee,” Furman said. “There was a lengthy, thorough and comprehensive hearing.”

Based on Pounders’ recommendations, the court of appeal denied Jesus’ plea. The state Supreme Court followed suit last month, leaving Jesus’ only possible recourse with the federal system.

His family still holds out hope, but it is fading. Other cases with some similarities have failed to sway the appeals courts: In 1993, the U.S. Supreme Court denied an appeal by a Texas Death Row inmate who presented affidavits suggesting that his brother had committed the crime for which he was convicted.

In that case, however, the brother was dead by the time the affidavits were filed. And the brother never told anyone at the time the crime was committed that he was to blame.

Similarly, Sheldon Sanders was convicted of murder in a 1985 shooting in Compton. His brother later confessed to his lawyer, family and others. But when the brother was called to the stand, he invoked the 5th Amendment.

The facts in the Avila case bode better for Jesus--his brother has testified under oath and there is evidence, albeit disputed, that he admitted his responsibility just days after the shooting. Still, persuading a court to order a new trial remains an uphill struggle, as even his family and lawyers concede.

“I always say that this is the one that got away,” Levin said. “Jake (Jesus) is an innocent man, and he may spend the rest of his life in prison just because no one bothered to give him a fair hearing. That’s wrong.”

Jesus’ father, Ernesto Avila Sr., could not agree more. “They say it’s justice for all, but they got the wrong guy,” he said last week, sifting through photographs of his two sons. “That’s no justice for anyone.”