Metropolitan News-Enterprise


Friday, September 9, 2005


Page 1


Ninth Circuit Rules:

Lawyer-Client Romance No Basis for Overturning Death Sentence


By KENNETH OFGANG, Staff Writer/Appellate Courts


The alleged conflict of interest resulting from a romance between a defendant on trial for his life and a lawyer who defended him does not warrant overturning the death sentence, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel agreed with U.S. District Judge Manuel Real of the Central District of California, who declared that “[b]eing in love is not a conflict” when he denied Ricky Lee Earp’s petition for write of habeas corpus.

The judges did, however, reverse Real’s decision in part, granting Earp an evidentiary hearing on his claims that the prosecution committed misconduct by intimidating a witness who would otherwise have given favorable testimony at a hearing on Earp’s motion for a new trial, and that his defense team conducted an inadequate investigation into potential mitigating evidence for the penalty phase.

Sentenced by Coen

Earp, of Palmdale, was sentenced to death by Los Angeles Superior Court Judge Ronald S. Cohen for raping and murdering the 18-month-old child of a friendís daughter. The California Supreme Court affirmed the sentence in 1999, rejecting arguments that  the trial judge had unfairly undermined defense efforts to show another man was the killer.

Earp, then 26, was living with his girlfriend at her house in the Antelope Valley in August 1988. Several days after a friend left her daughter, Amanda Doshier, in the care of Earp and his girlfriend, a firefighter responding to a radio call found the girl unconscious and not breathing at the bottom of a stairway.

She died in a hospital 2 days later of injuries caused by blows to the head and violent shaking. A pathologist testified there were bruises and tears in the genital and rectal areas.

Prosecutors’ Theory

Prosecutors said Earp was the only other person in the home during the period when the fatal blows were likely inflicted.  Witnesses testified to various explanations given by Earp, including that the child had fallen down the stairs, was knocked down by his dog, was suffering from the heat or was with another babysitter.

He testified at the trial that Dennis Morgan, a friend whom he had met in prison while serving a term for burglary, had been in the house and alone with the child while Earp was outside cleaning paint brushes. Prosecutors said the claim was unbelievable, noting that Earp had said nothing about Morgan in the many conversations he had about Amanda’s death during the three years between the death and his arrest.

Morgan denied having anything to do with the death and testified that he was not at the house at the time. In the motion for new trial, the defense claimed that Michael Taylor, who was jailed at the same time that Morgan was being held on charges unrelated to Amandaís death, heard Morgan say that he was at the house on the day in question and that he had lied at the trial.

In concluding that Earp’s relationship with attorney Adrienne Dell, whom he later married, did not constitute grounds for habeas corpus relief, Ninth Circuit Judge Richard Tallman said there was no proof that Dell acted any differently than she would have if the relationship was purely professional.

The marriage of Earp and Dell—who is now a partner in a San Jose firm and is a daughter of Judge George Dell, who retired from the Los Angeles Superior Court in 1985—ended in 2000 after seven years.

Tallman noted that under the Antiterrorism and Effective Death Penalty Act, a federal court can only grant habeas corpus relief if the challenged state court ruling is contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. The high court, he said, has not overturned  convictions where there have been intimate relations between attorneys and clients, in the absence of proof of actual prejudice.

“[W]hile we strongly disapprove of Adrienne Dell’s unprofessional behavior as reflected in her conduct at bar, the advent of AEDPA forecloses the option of reversing a state court determination simply because it conflicts with established circuit law,” Tallman wrote. “Although we would perhaps reach a different conclusion if addressing this claim on direct review, the Supreme Court has not spoken to this issue and has expressly limited its constitutional conflicts jurisprudence.”

But Earp is entitled to a hearing on his claim that prosecutors intimidated Taylor into recanting his claim that Morgan admitted being present on the day of the killing, Tallman said, because he has a colorable claim and no more is required, particularly since he did not get an evidentiary hearing on the issue in state court.

The case is Earp v. Stokes, 03-99005.


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