A Killer Job

At JUSTPAST midnight on January 28, convicted killer Stephen Wayne Anderson is scheduled to die by lethal injection at San Quentin. Anderson admits that he committed a brutal murder 21 years ago in rural San Bernardino County, but legal experts now say the circumstances of the crime did not warrant the death penalty. The real reason Anderson is on death row, they say, is that his attorney did a terrible job.

Last month a majority of the 25-member U.S. Court of Appeals in San Francisco voted to uphold Anderson’s death sentence. But Judge Stephen Reinhardt, in a harshly worded dissenting opinion signed by five other panelists, called Anderson‘s lawyer, S. Donald Ames, “deceptive, untrustworthy and disloyal to his capital clients” and said it is wrong “to permit the state to proceed with the execution of an individual whose death sentence may well have been imposed, not because of the crime that he committed, but because of the incompetence of an attorney with little integrity and a pattern of ineffective performance in capital cases.”

When Ames took on the Anderson case, it was the court-appointed counsel’s first attempt at capital defense. Anderson was charged with burglarizing the home of an 81-year-old piano teacher and, when she startled him, shooting her in the face. After his arrest, Anderson was held and interrogated by police for three days without being charged. During that time he confessed to two murders in Utah, crimes for which he was never convicted but which formed the basis of the prosecution‘s case in seeking the death penalty against him.

Despite the high stakes and complexity of the case, Ames did not meet Anderson until the trial began. In the guilt phase he relieved the jury of its responsibility by telling them in his closing argument that his client was guilty. In the penalty phase he presented as witnesses only Anderson himself and a prison chaplain who had met Anderson just once, and declined to interview other witnesses who could have helped convince the jury to spare Anderson and sentence him instead to life without parole. “Ames put Anderson on to testify because he didn’t have anyone else to put on,” said Margo Rocconi, an assistant federal public defender who is now representing Anderson. “He hadn‘t done any work to find anyone else.”

This is not the only time Ames handled a death penalty case so poorly. Two other clients who were set to be executed have had their sentences overturned because of his poor performance. In the case of Melvin Meffery Wade, who tortured and killed his 10-year-old stepdaughter, Ames told the jury that execution would help his client. As counsel for Demetrie Mayfield, who shotgunned to death two people and hid their bodies, Ames billed for just a week’s worth of pre-trial work and failed to learn that Mayfield was high on PCP when the crime occurred. A legal expert hired by the state to analyze Ames‘ performance called him “the type of lawyer who seeks to win his cases by inspiration, not perspiration; by oration, not preparation.” In the Mayfield decision, which was rendered last November, Judge D. Michael Hawkins, a former prosecutor, wrote that “Ames’ lack of preparation and bumbling presentation helped seal Mayfield‘s guilt, his woeful approach to sentencing ensured Mayfield the gallows.”

Though Ames’ representation of Anderson bore many similarities to his work on the Mayfield and Wade cases, Anderson is not likely to get a reprieve. His appeals are all but exhausted, and it is unlikely that the governor will be swayed by the victim‘s family to grant clemency. If executed, Anderson will be the 11th person put to death in California since the death penalty was reinstated 25 years ago. The fate of capital defendants often ends up in the hands of a randomly selected panel of judges on the federal Court of Appeals in San Francisco. If that panel is sympathetic to the case, the defendant’s life may be spared. If not, the execution usually goes forward. “It‘s the luck of the draw,” said Lawrence Gibbs, a Berkeley attorney who specializes in the analysis of post-conviction appeals. “It often has as much to do with who’s considering the case as with the case itself.”

Anderson‘s case casts in sharp relief one of the most pressing problems in capital cases, that of nonexistent defense. The legal and moral tangles created by the failure of capital-defense attorneys to fulfill a defendant’s Sixth Amendment right to counsel have been lamented for more than a decade on every level of the court from Superior to Supreme. Former U.S. Supreme Court Justice Harry Blackmun, who early in his career supported the death penalty and reversed his position in later years because of what he saw as egregious disparities in the meting out of death sentences, called the legal counsel available to capital defendants “woefully inadequate.”

The need to overcome this inadequacy is especially urgent in California, which has 607 inmates on death row -- roughly one-fifth of the total nationwide. California has no qualifications for capital-defense counsel and no oversight of attorneys on capital cases.