Wednesday, October 20, 2010
Court Orders New Hearing for Man Convicted in Palmdale Murder
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals has ordered a new hearing for a Palmdale ex-convict on Death Row for raping and murdering his 18-month-old goddaughter in 1988.
The panel said U.S. District Judge Manuel Real of the Central District of California erred by allowing the child’s mother to plead the Fifth Amendment at a hearing three years ago. That hearing was previously ordered by the Ninth Circuit on the issues of whether a Los Angeles deputy district attorney committed misconduct by threatening a defense witness, and whether the defense team conducted an adequate investigation into mitigating circumstances.
The court yesterday also ordered the case assigned to a new judge. It held that Real’s previous findings that the prosecutor was credible and the witness was not, and his refusal to delay the previous hearing so that the witness could be located in the state prison system and brought to Los Angeles to testify—Taylor testified after the Ninth Circuit granted an emergency stay—created an appearance that he could not preside over further proceedings in an unbiased manner.
Ricky Lee Earp was sentenced to death by Los Angeles Superior Court Judge Ronald Coen in 1992 after being convicted of first-degree murder in the slaying of Amanda Doshier, who had been left by her mother for several days with Earp and his girlfriend.
On the day of the attack, the girlfriend left for work, leaving the toddler with Earp. In the afternoon, a 911 call was placed by a man who reported that a baby had fallen down some stairs.
A firefighter found the girl unconscious and not breathing at the bottom of the 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 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, who has since died, denied having anything to do with the death and testified that he was not at the house at the time.
New Trial Motion
In a motion for new trial, the defense claimed that Michael Taylor, who was jailed at the same time that Morgan was being held on unrelated charges, heard Morgan say that he was at the house on the day in question and that he had lied at the trial. Taylor later recanted that statement, saying he had lied because Earp offered to pay him.
But Taylor again changed his story, claiming that the prosecutor, since-retired Deputy District Attorney Robert Foltz, and an investigator had coerced him into changing his statement.
The California Supreme Court affirmed Earp’s conviction and sentence in 1999, rejecting arguments that Coen had unfairly undermined defense efforts to show Morgan was the killer. Earp’s federal habeas corpus petition was denied by Real, but the Ninth Circuit reversed and ordered a new hearing.
In its 2005 decision, the panel rejected a claim that Earp received ineffective assistance from his attorney, Adrienne Dell, because the two were romantically involved. The court said Dell—whose father, George Dell, was a Los Angeles Superior Court judge prior to retiring in 1985—was unprofessional but did not have a conflict of interest.
Dell and Earp married in 1993 and divorced seven years later.
The court, however, said Earp had a colorable claim for relief based on the alleged witness tampering and that an evidentiary hearing was necessary to resolve the issue.
At a 2007 hearing, prosecutors hammered Taylor, arguing that his conflicting statements showed him to be less than credible. Foltz and the investigator testified that Taylor’s retraction was entirely voluntary, and came after he was informed that he might have to testify in court.
In calling Cindy Doshier, the defense proferred she would testify that she too was intimidated by Foltz, after testifying for the defense at trial. But after Real appointed independent counsel for Doshier, she invoked her right not to testify against herself, and the judge excused her.
Real denied the petition following the hearing, finding Taylor not credible, and accepting the testimony of the prosecutor and investigator as true.
Judge Richard Tallman, writing for the Ninth Circuit, said Doshier should not have been allowed to invoke the Fifth Amendment because there was no realistic possibility her testimony might incriminate her.
Tallman rejected the prosecution’s argument that had Doshier testified in the manner proferred by the defense, she would have been subject to prosecution for perjury, based on contradiction with a 1997 declaration.
Both U.S. Supreme Court and Ninth Circuit precedent hold that “a witness cannot validly assert her Fifth Amendment rights upon a fear that she is about to commit perjury,” Tallman explained. Besides, he noted, perjury prosecutions are subject to a five-year statute of limitations in federal court, and three years in California, while the evidentiary hearing came 10 years after she signed the declaration and 16 years after the trial.
By allowing Doshier to invoke the Fifth Amendment, Real “deprived Earp of a full and fair hearing.”
The judge went on to “regrettably conclude” that it was necessary to take the case from Real, saying he could not be expected to set aside his previous credibility findings and that his criticism of the panel’s stay of the evidentiary hearing made reassignment “necessary to uphold the appearance of justice.”
He emphasized that the panel was not judging the ultimate issue of credibility or the merits of the claim of prosecutorial misconduct.
While granting a new hearing on the witness intimidation claim, however, the panel upheld Real’s rejection of the ineffective-assistance allegation.
The defense did not present evidence of organic brain damage, Tallman said, because the experts whom it consulted said it could not be proven. Even if the experts were wrong, the judge said, that would not establish a deficiency on the part of counsel.
He went on to say that the discovery by habeas counsel of additional witnesses who would have testified as to Earp’s drug use and other problems in his youth did not establish that the original mitigation investigation was inadequate. The original investigation, Talman said, was extensive despite being hampered by the defendant’s own lack of honesty with counsel.
Senior Judges Jerome Farris and Dorothy W. Nelson joined in the opinion.
The case was argued on appeal by Robert Gerstein for the defendant and Supervising Deputy Attorney General James W. Bilderback II for the state.
The case is Earp v. Cullen, 08-99005.
Copyright 2010, Metropolitan News Company