Metropolitan News-Enterprise


Friday, June 15, 2001


Page 5


Failure to Use PCP_Defense to Murder Was Ineffective Assistance, Lawyer Says


By a MetNews Staff Writer


A death row inmate convicted of the stabbing murder of a man who allegedly made a sexual advance towards him should receive a new trial because his original lawyer didn’t present evidence that would have established the defendant was acting under the influence of drugs, his current counsel argued yesterday.

The performance of John Woodward Ellery at Thaddaeus Turner’s 1984 trial was so deficient, Fresno attorney Katherine Hart told a Ninth U.S. Circuit Court of Appeals panel, that the Merced man should be given a new trial without the necessity of an evidentiary hearing on his habeas corpus petition.

U.S. District Judge Robert Coyle of the Eastern District of California denied the petition, saying the additional evidence proffered by Hart and co-counsel Charles Taylor would not have swayed the Merced Superior Court jury that condemned Turner for the killing of Merced College professor Roy Savage.

Prosecutors rejected the sexual-assault claim, saying the motive for the killing was robbery. They presented evidence of forced entry into Savage’s home and theft of property, including Savage’s wallet—which was found in the defendant’s car—and the jury found that Savage was killed during commission of a robbery.

Turner’s direct appeal was rejected by the state Supreme Court in  People v. Turner (1990) 50 Cal.3d 668.

There was evidence at the trial that Turner had been a user of PCP, including at times around the murder of Savage.

But Ellery’s presentation of evidence on the subject was “haphazard,” Hart argued yesterday, because he failed to introduce a readily available blood sample that would have showed toxic levels of PCP in Turner’s blood at the time of arrest—about a week after the murder—and didn’t emphasize the issue in closing argument.

But Deputy Attorney General W. Scott Thorpe told the jurors that Ellery made a reasonable tactical decision to skirt the drug question, rather than emphasize that Turner used a controlled substance that he apparently knew would make him act violently. The lawyer chose instead to use a defense that would have played into the fears of homosexuality typical of the rural county where the case was tried, especially in the 1980s.

Under questioning by Judge Richard Tallman, Hart conceded that Ellery had reason to believe that a “homophobia” defense might work in Merced at the time.

“I don’t remember too many gay pride parades,” she said, acknowledging that bluegrass festivals were more the norm in the Central Valley community at the time.

Tallman was also openly skeptical of Hart’s claim that Ellery should have made a stronger effort to persuade Turner to accept an offer of a plea to second degree murder. Turner was advised that he faced the death penalty, Hart conceded, but didn’t really believe it was a possibility because Ellery expressed the opinion that it “wasn’t a death penalty case.”

 The argument, Tallman said, fails to consider that “it’s the client’s choice” rather than the lawyer’s as to whether to accept a plea.

Judges Kim M. Wardlaw and Richard Paez were also on the panel.


Copyright 2001, Metropolitan News Company