Appeal of Death Sentence Hinges on Competence

Stephen W. Anderson, a drifter, broke into the San Bernardino home of Elizabeth Lyman, a retired 81-year-old piano teacher, and shot her dead on May 26, 1980.

Anderson ransacked the house in an apparent search for money. He cooked himself a dish of noodles, which he was eating when sheriff’s deputies arrived at the house after getting a call from a neighbor who became worried after seeing a stranger in Lyman’s house.

Anderson, now 48, was arrested, confessed to the crime, convicted of first-degree murder and sentenced to death.

The California Supreme Court, a federal trial judge and a panel of judges from the U.S. 9th Circuit Court of Appeals all have upheld the death sentence.

But Anderson’s attorneys still hope to save his life.

They have asked the U.S. Supreme Court to review the case on two grounds. The attorneys allege that Anderson’s state court-appointed trial lawyer, S. Donald Ames, provided inadequate representation and that law enforcement authorities questioned him improperly before his arraignment.

If the high court on Tuesday declines to grant a review of his case, Anderson’s execution could be scheduled within a few months, according to the state attorney general’s office. Of the 606 inmates on California’s death row, Anderson is next in line to die by lethal injection.

Deputy Atty. Gen. Gil Gonzalez, who is representing the state in the appeals, said the prior court rulings were sound. There is no valid reason for the Supreme Court to hear the case, much less reverse the earlier decisions, he said.

Anderson’s attorneys disagree and have put considerable effort into attacking Ames’ work as a defense lawyer.

Ames’ endeavors in two other San Bernardino murder cases were found so negligent that the U.S. 9th Circuit Court of Appeals voided the death sentence.

The most recent of those rulings came Wednesday when an 11-judge panel of the 9th Circuit unanimously described Ames’ performance in the 1983 trial of Demetrie L. Mayfield as “horrendous” and said it was “deplorable that Ames did not put forth more of an effort when his client’s life was at stake.”

One of the judges, Michael D. Hawkins, wrote that it “is a painful truth of the death penalty process that these most serious cases sometimes draw the least adequate trial counsel.”

When Ames was appointed to represent Anderson in 1980 it was his first case under California’s new death penalty law. During the next 15 years, Ames represented 11 individuals in capital cases, according to testimony he gave in 1998 during a federal court hearing on Anderson’s case.

At least four of the defendants got death sentences; two got life sentences. In one of the other cases, Ames was removed by a judge before trial after a hearing where a Latino defendant convinced the judge that Ames could not properly represent him. It is not clear whether Ames, who died last year at age 77, completed the remaining four cases.

A different, smaller panel of 9th Circuit judges ruled a year ago that Ames’ performance, if not flawless, was sufficient to pass constitutional muster in the Anderson case. The court also rejected Anderson’s claim of police misconduct in a 2-1 ruling.

Despite that decision, Anderson’s lawyers hope that Wednesday’s ruling will help persuade the U.S. Supreme Court to hear the case.

“It is important for the U.S. Supreme Court to grant review because the court of appeals decision in Anderson’s case set the standard for effective representation of capital defendants unacceptably low,” said Margo A. Rocconi, a deputy federal public defender in Los Angeles who now represents Anderson.

In addition, Rocconi said the 9th Circuit failed to properly apply a Supreme Court precedent limiting when prosecutors can use statements against suspects that were obtained from them “in violation of their right to a prompt arraignment.”

For example, Rocconi said, while Anderson was in custody awaiting arraignment for an excessive period of time in the Lyman case, he confessed to two murders in Utah. Those confessions were used by prosecutors during the case’s penalty phase as “aggravating” factors that the jurors considered when deliberating on whether to sentence Anderson to death.

Anderson’s lawyers said that he also claimed he committed six murders in Nevada that never occurred and that there is reason to doubt that he killed anyone in Utah.

The relatives of one of the Utah victims have provided Anderson’s lawyers with a statement saying that authorities told them they had insufficient evidence to prosecute Anderson.

His lawyers’ arguments to the Supreme Court and the 9th Circuit come at a time of growing concern about the competence of appointed lawyers in death penalty cases.

Last year, Columbia University law professor James S. Liebman released a sweeping study of the death penalty, which found state and federal courts had overturned more than two-thirds of all death sentences in cases that had gone through the appellate process from 1973 to 1995.

The study found that among the primary reasons for the reversals was “egregiously incompetent defense lawyers who didn’t even look for--and demonstrably missed--that the defendant was innocent or did not deserve to die.”

Earlier this year, Sen. Patrick Leahy (D-Vt.) introduced legislation calling for a variety of reforms in capital litigation, including the establishment of minimum competency standards for lawyers to take on such work.

Still, a convicted defendant, such as Anderson, must overcome high hurdles to persuade an appellate court that his legal representation was ineffective to the degree that his 6th Amendment right to a fair trial has been violated.

Under a 1984 Supreme Court decision, Strickland vs. Washington, the inmate has to demonstrate that the attorney’s performance was well below professional norms and that his defense was prejudiced by his lawyer’s shoddy work.

Given that high standard, it is particularly unusual for a lawyer to have more than one case reversed based on ineffective assistance of counsel, as Ames has, according to Elisabeth Semel, director of the death penalty clinic at UC Berkeley’s Boalt Hall School of Law.

On Thursday, Rocconi and her co-counsel, Robert S. Horwitz of Santa Ana, sent a supplemental brief to the Supreme Court, asserting that Wednesday’s unanimous decision in the Mayfield case “has a direct bearing on the ineffective assistance of counsel questions” pending in the Anderson case.

And on Friday, the defense lawyers filed a new brief with the 9th Circuit asking the court to consider rehearing Anderson’s appeal, again citing the Mayfield ruling.

In that case, the 9th Circuit judges emphasized Ames’ failure to prepare thoroughly for the penalty phase of the case--where a defense lawyer is supposed to present mitigating evidence to persuade jurors to spare his client’s life.

If anything, Rocconi and Horwitz said in their latest court filings, Ames’ performance in the Anderson case was worse than it was in the Mayfield case.

The attorneys said that Ames barely spoke to Anderson before trial and that he failed to interview a variety of individuals who could have testified on Anderson’s behalf during the penalty phase. Despite the fact that the jury swiftly convicted Anderson of killing Lyman, the panel deliberated about three weeks before recommending a death sentence.

Lyman’s relatives have given the defense lawyers a statement saying that they do not favor Anderson’s execution, as have the relatives of one of the Utah victims, Robert Blundell.

“While we deeply miss our son and brother, Bob Blundell, executing Stephen Anderson will not replace our loss nor bring us any relief,” Blundell’s mother, Lois Smith, wrote in a signed statement. “We do not want Bob to be remembered through the taking of another person’s life. We do not want or need Stephen Anderson to die for the death of our loved one.”