Metropolitan News-Enterprise


Thursday, January 16, 2020


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Ninth Circuit Tosses Murder Conviction Tainted by Lawyer’s Racism


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, sitting en banc, declared yesterday that an African American man, convicted in San Bernardino Superior Court in 1991 of a special circumstance murder, must receive a new trial because his lawyer was a virulent racist who must be presumed to have failed to provide reasonably competent representation to his client.

The unusual order summarily reverses the denial of a petition for a writ of habeas corpus filed by Ezzard Charles Ellis—convicted of a 1989 robbery and murder at a McDonald’s drive-through in San Bernardino and sentenced to life without the possibility of parole—by District Court Judge S. James Otero of the Central District of California.

The appellate court further directed the District Court to grant a conditional writ releasing Ellis from custody unless California retries him in a reasonable period of time.

Wording of Order

The order states:

 “On appeal, the State of California initially defended the district court’s judgment, and a three-judge panel of our court affirmed….After Ellis petitioned for rehearing en banc, however, the State changed its position. The State agreed to waive any bar to granting habeas relief imposed by Teague v. Lane, 489 U.S. 288 (1989), or by the Antiterrorism and Effective Death Penalty Act’s exhaustion requirement. Moreover, at oral argument before the en banc court, the State conceded that Ellis’s conviction should be overturned.”

Under Teague, a petitioner for a writ of habeas corpus is precluded from relying on a rule set forth in a case decided after his or her conviction. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that writ of habeas corpus may not be afforded to a person who is incarcerated based on a state conviction unless that person “has exhausted the remedies available in the courts of the State.”

Nguyen’s Concurrence

Judge Jacqueline Nguyen wrote an opinion concurring with the en banc order—joined by Chief Judge Sidney Thomas, and Judge Mary Murguia—“because [she] strongly disagree[d] with the majority’s refusal to explain its decision, particularly in the face of a vigorous dissent.”

Nguyen’s concurrence observes that Ellis’s lawyer, Donald Ames, was “a virulent racist who believed in the inferiority of racial minorities,” adding:

“Worse, he allowed his repugnant views to infect his professional life—African American clients, court personnel, and lawyers were ‘niggers,’ and an Asian American judge was a ‘fucking Jap’ who should remember Pearl Harbor. Ames was disloyal and entirely indifferent to the fate of his non-white clients, convinced that they were all stupid and deserved to be convicted.”

Fundamental Unfairness

Nguyen went on to say:

“A trial is fundamentally unfair if defense counsel harbors extreme and deep-rooted ill will toward the defendant on account of his race.”

The jurist declared that in cases like Ellis’s, “a lawyer’s racial bias against racial minorities is so extreme and deep-rooted that it would be impossible for him to fairly represent a non-white defendant. Where there is clear and convincing evidence of such bias we must presume that counsel’s racism prejudiced the result. To hold otherwise...would reduce a sacred right to worse than a sham.”

Nguyen was a member of the three-judge panel that on June 7, 2018 affirmed Otero’s denial of habeas relief. She said in a concurring opinion that she agreed “reluctantly,” explaining that as a member of a three-judge panel, she was bound by the Ninth Circuit’s 2001 opinion in Mayfield v. Woodford.

“Had we not been bound by Mayfield,” she said, “I would have granted Ellis’s petition.”

In Mayfield, it was held that the fact of Ames’s racism did not mean his client received inadequate representation.

Ames died in 1999. It was not until 2003 that Ellis learned from newspaper articles of his lawyer’s racism.

Watford’s Concurrence

Judge Paul Watford also wrote a concurring opinion that was joined by Judges Michael Hawkins (a member of the three-judge panel that initially decided the case), Kim Wardlaw, Andrew Hurwitz, and John Owens.

Watford’s concurrence responds to dissenting Judge Consuelo Callahan’s contention that the en banc court’s order granting Ellis relief is forbidden by AEDPA.

He wrote that AEDPA presented no obstacle to the granting of relief to Ellis on his claim of ineffective assistance of counsel claim under the United States Supreme Court’s 1984 decision in United States v. Cronic in which, unlike the more commonly applied Supreme Court’s 1984 decision in Strickland v. Washington, prejudice is presumed.

Watford explained that because Ellis’s claim “was never adjudicated on the merits in state court,” AEDPA was inapplicable.

In a strongly worded dissent observing that “[t]he implications of the State’s late-hour reversal, are troubling, to say the least,” Callahan argued that a concession by the state did not provide the en banc court with the authority to grant Ellis’s writ under AEDPA.

She maintained that Ellis was unable to show that the California courts’ denial of his Sixth Amendment claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”

The jurist complained:

“[W]e grant Ellis federal habeas relief—but not because he has demonstrated his entitlement to such relief on the legal merits of his claims. Rather, we grant Ellis’ petition because the State of California—after nearly three decades of defending the fairly-obtained conviction in this case—wants us to write a new rule of constitutional law and vacate Ellis’ conviction.”

Callahan’s dissent notes that “the State has remedies both within its executive power and in the state courts to provide Ellis with such relief as it deems appropriate. The State should act on the strength of its convictions rather than ask us to exceed our legal authority by adopting a new constitutional rule.”

The case is Ellis v. Harrison, 16-56188.


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