Metropolitan News-Enterprise


Wednesday, February 13, 2002


Page 1


Ninth Circuit Grants Hearing Into Inmate’s Death Sentence

Panel Says Prisoner’s Claim of Ineffective Assistance Is ‘Compelling’


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals yesterday upheld the conviction of a Merced man for the stabbing murder of a college professor who allegedly made a sexual advance toward him, but ordered an evidentiary hearing to determine whether he is entitled to a new death penalty hearing.

The ruling was at least a temporary victory for Thaddaeus Turner, on death row since 1984 for the murder of Merced College professor Roy Savage.

Judge Kim Wardlaw, writing for the Ninth Circuit, said U.S. District Judge Robert Coyle of the Eastern District of California should have heard testimony before ruling that penalty-phase evidence of Turner’s PCP use and difficult childhood would not have swayed the Merced Superior Court jury.

“Turner’s claim that [defense attorney John Woodworth] Ellery was ineffective during the penalty phase is compelling,” Wardlaw wrote.

Ellery, she noted, admitted to the trial judge that he was unprepared for the penalty phase and only called six witnesses for a hearing that took less than a day, with the jury deliberating for little more than an hour before returning with the death penalty verdict.

Mitigating Evidence

Only by holding an evidentiary hearing, she said, can the district judge determine what mitigating evidence a reasonably competent attorney would have presented in the penalty phase and whether there is a reasonable probability the jury would have spared Turner the death sentence had it heard the evidence.

Wardlaw also concluded, however, that Ellery’s defense in the guilt phase was adequate.

Turner’s claim that he was defending himself from a sexual assault was disputed by prosecutors, who said the motive was robbery. They pointed to the forced entry into Savage’s home and theft of property, including Savage’s wallet—which was found in the defendant’s car.

Turner admitted taking it, but said he only decided to steal the wallet after he stabbed Savage.

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, and Ellery used a psychologist as an expert to testify how the drug might have affected the defendant’s conduct.

Blood Sample

But Turner’s lawyers argued before the Ninth Circuit that Ellery should have introduced a readily available blood sample that would have shown toxic levels of PCP in Turner’s blood at the time of arrest—about a week after the murder—and used an expert with more specific knowledge about PCP.

Wardlaw disagreed, saying it was unlikely jurors would have believed that Turner was under the influence of PCP after he testified about the fatal confrontation—an account consistent with an ability to remember and perceive events and inconsistent with a claim that he was under the influence of a powerful drug, the judge said.

The appellate panel also rejected the defense claim that Ellery should have made a stronger effort to persuade Turner to accept an offer of a plea to second degree murder.

“Trial counsel was not constitutionally defective because he lacked a crystal ball,” Wardlaw wrote. Turner’s claim that he turned down the plea because he didn’t believe a death sentence was possible was “incredible,” Wardlaw said.

The defendant obviously knew the state was seeking the death penalty, she reasoned, even if it is true that Ellery predicted the jury would not return a death verdict on the facts.

If the court were to find ineffective assistance on those facts, Wardlaw wrote, “every rejection of a plea offer, viewed perhaps with more clarity in the light of an unfavorable verdict, could be relitigated upon the defendant’s later claim that had his counsel better advised him, he would have accepted the plea offer.”


Copyright 2002, Metropolitan News Company