Metropolitan News-Enterprise


Friday, June 8, 2018


Page 3


Ninth Circuit Comment:

Prejudice to Black Defendant Should Be Presumed Where It Emerges Lawyer Was Racist

Panel Affirms Denial of Habeas Corpus Relief Based on Earlier En Banc Decision But in a Concurring Opinion, Expresses Disapproval of the Result


A three-judge panel of the Ninth U.S. Circuit Court of Appeals on Friday affirmed the denial of habeas corpus relief to a California inmate whose attorney was, years after the 1991 conviction, learned to have been biased against African Americans.

Ezzard Ellis, an African American, was represented in his murder trial by San Bernardino attorney S. Donald Ames, since deceased. The inmate learned of Ames’s bigotry from a newspaper clipping sent to him in 2013.

Two daughters of Ames provided declarations attesting to their father’s bigotry. One said her father had “contempt for people of other races and ethnic groups” and “especially ridiculed black people, referring to them with racial invectives.”

The Ninth Circuit panel—comprised of Circuit Judges Michael Daly Hawkins, A. Wallace Tashima, and Jacqueline H. Nguyen—affirmed the writ-denial by District Judge S. James Otero, acting under compulsion of the en banc decision in the 1991 Ninth Circuit decision in Mayfield v. Woodford. There it was held that the mere fact of Ames’s racism was insufficient to show denial of effective assistance of counsel.

In the case decided Friday—Ellis v. Harrison, No. 16-56188—a concurring opinion by Nguyen, joined in by Hawkins and Tashima, took issue with the result. Nguyen wrote:

 If we were writing on a blank slate, I would vote to grant relief. Of the constitutional rights given to a criminal defendant, none is more important than the Sixth Amendment right to counsel. By allowing Ellis’s conviction to stand, we make a mockery of that right.

Ellis’s lawyer. Donald Ames, openly and repeatedly expressed contempt for people who look like Ellis based on the ugliest of racial stereotypes. This was not just the depressingly common assumption that criminal defendants of certain races are more likely to be guilty, but something far more sinister: a belief in the inferiority of all people of color—be they support staff, co-counsel, or judge. Most damning of all, Ames made it clear that he did not care what happened to his black clients. It would be impossible for anyone with such views to adequately represent a non-white defendant.

I do not suggest that a conviction should be overturned whenever a racially tinged comment by defense counsel comes to light. Racism has as many shades as race, and we generally assume that counsel can set aside any personal distaste for a client, whatever its motivation, to zealously advocate on his behalf. But when an attorney expresses such utter contempt and indifference about the fate of his minority clients as Ames did here, he has ceased providing the reasonably competent representation that the Sixth Amendment demands. A defendant in such an untenable position may be better off with no counsel at all.

Lawyers today look very different than they did in 1991, when Ellis was tried. Within a generation, diversity among legal practitioners has markedly increased. On appeal in our court, of the three judges and two advocates at oral argument, four were people of color. These changes matter. Minority lawyers’ greater representation on the bar has led to a growing acknowledgment and intolerance of racial bias in the practice of law. But it has not ended racism, both subtle and overt. People of color are still underrepresented in the legal profession but overrepresented among criminal defendants and face greater odds of conviction and higher average sentences. See, e.g.. Robert J. Smith et al.. Implicit White Favoritism in the Criminal Justice System. 66 Ala. L. Rev. 871,877-90 (2015).

When examining the reasonableness of counsel’s performance, we extend considerable deference to strategic choices. This deference is predicated on the assumption that counsel is acting in the client’s best interest. For an attorney as deeply racist as Ames, that assumption is unfounded. It makes no difference that Ellis was unaware of his counsel’s beliefs. The deleterious effect of such racism on the outcome is usually impossible to prove and. under these circumstances, we should presume prejudice.

Because I cannot in good faith distinguish Ellis’s case from Mayfield. I reluctantly concur in the opinion. Had we not been bound by Mayfield. I would have granted Ellis’s petition.


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