Metropolitan News-Enterprise


Tuesday, July 23, 2002


Page 1


Lawyer’s Failure to Probe Alternate Suspect Held Ineffective Assistance


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Los Angeles attorney’s failure to investigate the possibility that his client’s brother, rather than the accused client, committed a gang-related shooting constituted ineffective assistance of counsel requiring a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Attorney Ted Yamamoto’s decision not to pursue information implicating Ernesto Avila in the 1990 Lynwood attack was “patently unreasonable,” Judge Harry Pregerson wrote for the panel. A lawyer has a duty to investigate potential defenses, the jurist said, even if he perceives that—as Yamamoto testified—he would be “going against the wishes of [his client] and his family.”

Yamamoto did not return a MetNews phone call seeking comment on the decision.

The Avilas were among 30 or 40 people who attended a baby shower at Ham Park. Several, including the brothers, were associated with the Young Crowd gang.

A fight broke out after a group of black men walked by the baby shower and two of the men had a conversation with Jesus Avila and another man about large tattoos on their back. Ernesto Avila testified at a habeas corpus hearing before a referee appointed by the Court of Appeal that he was the other man.

Gun Fired

According to the African American men, they were then attacked without provocation by several men, including Jesus Avila, whom they said they saw take what looked to be a gun from a crack in a wall. The shooting victim, Demetrius Kidd, said he saw Jesus Avila fire the gun, that he ran away, and that he was struck behind his left ear as he ran.

Jesus Avila denied any involvement in the shooting, testifying that he and his girlfriend were in the barbecue area of the park getting food when he saw the black men spray painting gang signs on the wall. A fight then broke out, he said, which he tried to break up.

After failing to break up the fight, he said, he returned to the baby shower, dropping to the ground when he heard shots. Three witnesses corroborated his testimony, but jurors found him guilty of attempted murder and he was sentenced to life plus eight years in prison.

Reasonable Doubt

State appeals and the state habeas corpus petition failed to get his conviction overturned, and U.S. District Judge Alicemarie Stotler denied his federal petition. But the Ninth Circuit panel said Yamamoto “failed to investigate and introduce evidence that would have raised a reasonable doubt about” his client’s guilt, and ordered that the defendant be released or retried within 90 days.

Pregerson noted that Yamamoto was appointed after Jesus Avila’s original attorney, George Denny, withdrew due to a conflict of interest. Testimony at the referee’s hearing suggested that the conflict was created by Ernesto Avila confessing to Denny—who was representing him in another matter at the time—and to Denny’s investigator, David Lynn, that it was he, not his brother, who had shot Kidd.

Eight witnesses who were at the shower but were not called at trial gave testimony favorable to the defendant at the state habeas corpus hearing, saying that Jesus Avila was in the barbecue area at the time of the shooting.

Two testified that they told Lynn they saw Ernesto Avila shoot Kidd, and another witness said she told the investigator that Ernesto Avila had admitted the shooting to her. Yamamoto testified that he was under the impression Denny knew “who the real shooter was” but that he didn’t ask Denny for information about the subject and that Denny did not volunteer any.

Ernesto Avila testified that he was the shooter.

Yamamoto said he concluded before trial that Ernesto Avila was the shooter, in part because when he told the brothers’ mother that he was pursuing the possibility of identifying someone else as the shooter, she “looked somewhat dejected” and said “it would be trading one for the other.”

He added that his client “never actually expressed to me a desire for me to restrain myself from going after Ernesto, but at the same time I assumed that that’s what he wanted” and what his mother wanted. He also said he expected Ernesto Avila to admit the shooting and did not see a need to “aggressively” investigate the issue.

The referee concluded that Yamamoto had adequately investigated the case, and the petition was summarily denied.

Pregerson concluded, however, that Jesus Avila is entitled to federal habeas corpus relief because the denial of his state petition was contrary to “clearly established federal law” on the issue of ineffective assistance and was based in part on “clearly erroneous” findings of fact by the referee.

The referee was wrong to conclude, the appellate jurist explained, that lack of cooperation by witnesses hampered Yamamoto. It was clear that lack of adequate investigation, not lack of witness cooperation, “kept this evidence out of the courtroom at Jesus’s trial,” Pregerson said, especially given the “reasonable probability” that Ernesto Avila would have confessed if confronted by Yamamoto with witness statements implicating him.

Judges Raymond Fisher and Richard Tallman concurred in the opinion.

The case is Avila v. Galaza, 01-55149.


Copyright 2002, Metropolitan News Company