Metropolitan News-Enterprise


Tuesday, October 16, 2001


Page 3


Ninth Circuit Revives Challenge to Orange County Man’s Death Sentence


By a MetNews, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered a new habeas corpus hearing for a former Newport Beach resident who has twice been sentenced to death for a 1977 drug-related murder near Fresno.

Judge Stephen Reinhardt, writing for a divided panel, said Richard L. Phillips may have been denied a fair trial as a result of ineffective assistance by his trial lawyer as well as by a possible secret plea deal between the prosecutor and Phillips’ ex-girlfriend.

Judge Andrew Kleinfeld vigorously dissented, criticizing Reinhardt and Senior Judge Betty B. Fletcher for accepting arguments the dissenting juror called “nonsense.”

Phillips, one of the state’s longest-serving death row inmates, was sentenced to death in 1980 for the murder of Bruce Bartulis. He was also convicted of the attempted murder of Ronald Rose.

The prosecution’s case was built on the testimony of Rose and Susan Colman, who was Phillips’ girlfriend. The evidence was that Phillips met the victims when they were building in his neighborhood and offered to let them in on a cocaine deal for $25,000 each, and also offered to supply them with stolen housing insulation.

The two paid him part of the money and agreed to bring more. At a roadside meeting off Highway 99 in Madera County, however, Phillips shot the two men, then poured gasoline on their car and its occupants and set it afire.

Rose, despite being badly burned and shot five times, got out of the car and started running. Phillips struck him with the car, and then drove off, but Rose survived.

Phillips was arrested several months later in Salt Lake City. Authorities seized a letter he wrote from jail that appeared to order the recipient to kill Phillips’ mother, who planned to testify for the prosecution, and to harm or kill other witnesses.

Phillips testified he was being framed. He claimed he was in Sacramento at the time of the crimes.

The California Supreme Court upheld his convictions but overturned his death sentence in December 1985, citing evidentiary errors, including the admission of the letter.

While awaiting a second penalty trial, Phillips brought a series of habeas corpus petitions challenging the guilty verdict and special-circumstance finding. In one, he claimed that prosecutors had withheld statements by Colman that there had been “a mutual shoot-out” involving Phillips and the victims.

Phillips’ trial lawyer, Paul Martin, testified that had he known of the statements, he might have argued “an alternative defense of self-defense and mutual shoot-out” instead of presenting the defendant’s alibi. The judge, however, denied relief, finding that Martin had the statements.

At the second penalty trial in 1995, the defense claimed that the bullet that killed Bartulis was fired by Rose.

Phillips admitted lying at the first trial. He said he never planned to rob the victims, that there had been a shoot-out, and that he saw a revolver in Rose’s hand.

After the Supreme Court unanimously upheld the second death sentence, Phillips brought his federal habeas corpus petition. Reversing course from his previously denied state petition, Phillips’ lawyers now argued that Martin knew of Colman’s statements and should have used them to present a case based on the supposed shoot-out instead of the “hopeless” alibi defense.

Prosecutors responded that Martin had presented a “stellar” defense. They also offered a declaration from Martin in which he did his own reversal of course and swore that he would not have presented the “shoot-out” defense in any event because he couldn’t have done so without presenting false testimony.

He said in the same declaration that he “never thought Phillips’s alibi defense had any merit.” That prompted Reinhardt to say it was an error for District Judge Robert Coyle to deny the petition without an evidentiary hearing at which Martin would have been called upon to explain the apparent contradiction.

“[I]f Martin never believed the alibi defense, then his explanation for failing to pursue an alternative ‘shoot-out’ defense—that it would have been unethical to assist Phillips in committing perjury—cannot be accurate,” the judge said.

Reinhardt also criticized the “deplorable” conduct of Madera County District Attorney David Minier.

Minier denied a claim by Colman’s former lawyer that he promised Phillips’ ex-girlfriend that she could plead guilty to being an accessory to murder and would receive no more than a year in jail if she testified against Phillips. Minier also claimed that if he had made such an offer, he would have told the defense lawyer not to tell the client, so that he could “insulate” her from a claim that he had procured the testimony with a promise of leniency.

Reinhardt concluded that had the jury heard the shootout defense and known of the plea bargain, it might have concluded that there was no robbery, and that Phillips was guilty only of second degree murder or of first degree murder without special circumstances.

Kleinfeld vociferously argued otherwise:

“[Phillips] now gets the benefit of the now common but highly unlikely assumption that juries impose death penalties because of bad lawyers, rather than bad crimes. Phillips demands, and gets, relief because he says he had a bad lawyer, even though he admits to shooting, burning, and maiming two men, and successfully killing one of them without justification. And the majority now expands the notion of ‘bad lawyer’ to include one who accepts his client’s story, investigates it, and even finds corroboration for it, rather than presenting a different, conflicting story in the face of his client’s insistence.”

The case is Phillips v. Woodford, 98-99022.


Copyright 2001, Metropolitan News Company