By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
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.
A recent study by Columbia University law professor James S. Liebman found that state and federal courts have overturned more than two-thirds of all death sentences between 1973 and 1995. A primary reason for the reversals: “egregiously incompetent defense lawyers.” The study‘s results “reveal a death-penalty system collapsing under the weight of its own mistakes,” Liebman wrote. “They reveal a system in which lives and public order are at stake, yet for decades has made more mistakes than we would tolerate in far less important activities. They reveal a system that is wasteful and broken and needs to be addressed.”
The work of Ames, who died in 1999, only magnifies the need for systemic repair. In the appeal on the Wade case, Ames’ own daughters testified against him, telling the court of his physical and psychological abuse of them and of his frequent use of deprecating remarks and racial slurs about his clients. “We knew this man did not get a fair trial,” said Alison Taylor, Ames‘ youngest daughter. “We wanted the true facts to come out.” Donald Ayoob, an assistant state public defender who worked on the Wade appeal, said Ames was out of his depth. “This was a man who had no idea what was required to properly prepare for a capital case,” said Ayoob. “When it comes to the shoddy representation that capital defendants get at trial, Don Ames was a poster boy.”
Sherman Donald Abramowitz was born in St. Louis, Missouri, the child of Eastern European Jewish immigrants. He was bar mitzvahed at the age of 13, but in later years he sought to conceal his Jewish identity, changing his name to Sherman Abrams and then, finally, to S. Donald Ames. After a stint as a corporal in the Air Force during World War II, Ames traveled west, living in Los Angeles and Salt Lake City and working as an aluminum-siding salesman and sports radio announcer. During that time he married, had three daughters, divorced and re-married, finally moving to a modest ranch-style home in San Bernardino. He took correspondence courses at Southwestern School of Law in L.A. and was admitted to the bar in 1972 at the age of 50. His first job was with the public defender’s office in San Bernardino. Alison Taylor remembered her father‘s decision to seek the position as a purely pragmatic one. “He was attracted to the kudos of being a big lawyer,” Taylor said. “I don’t think he cared one way or the other where he worked. That was where he could get a job at the time.”
From his very first appearance before a jury, it was clear that Don Ames was not your average attorney. Just over 6 feet tall and wiry, Ames‘ boastful stride, expensive suits and thick, silver hair belied his inexperience. “He came into an office populated with a lot of young radicals and hippie types,” longtime colleague Gerald Farber said. “I think initially he felt no confidence in his professional abilities.” Preparing for his first trial -- a misdemeanor assault case -- Ames was nervous, Farber recalled. To compensate, Ames mustered all his salesman skills and put on quite a show. He spoke dramatically and gesticulated grandly, even dropping to the floor and rolling around to demonstrate a point for the jury. Farber, who mentored Ames in the tiny Public Defender’s Office, witnessed the performance with pleasant surprise. “I thought to myself, well, that‘s dedication,” he said.
Ames recognized the value of his theatrical skills and quickly developed a reputation as a formidable presence, both in and out of court. For most of his six years with the public defender, Ames was the office “desert rat,” a term used to describe the attorney whose job it was to shuttle between far-flung courts of the county, from the Cajon Pass to the Colorado River. “He used to boast about the cases where he got someone off,” said Taylor, who spent summers with her father. “Once I asked him how he felt when he got someone off who he knew was guilty. He said, ’It‘s blowing smoke up the asshole of justice.’ Therein lies the truth of how my father felt about right and wrong and the law.”
Unlike his fellow public defenders, who lived modestly and, as Farber put it, “got by with scruffy $20 shoes,” Ames wore flashy jewelry, drove expensive cars and was a fan of the three-martini lunch. He liked to go on cruises and take weekend gambling trips to Las Vegas. “He spent every dime he made on things that were pleasing to him,” Farber said. “Whatever new toy was on the block, he had to have it.”
Though Ames socialized with the boys from the office, joining in on fishing trips and playing poker, some were put off by his swaggering ways. He developed a reputation among the court‘s support staff as someone to be avoided. “He was rude, chauvinistic and mean,” said Laurie Little, who has worked as a fiscal clerk for 13 years. “In all my years with the court and all the lawyers I’ve seen, he was the worst.” David Whitney, who worked as a criminal defense attorney before switching to the District Attorney‘s Office, considered himself one of Ames’ few allies. “He didn‘t have a lot of friends because he was very aggressive, a bombastic personality,” recalled Whitney. “At the beginning of every trial he would tell whatever young D.A. was on the case, ’I‘m gonna kick your ass.’”
In 1978, after being passed over for a promotion, Ames left the Public Defender‘s Office and struck out on his own. He had no experience on capital cases -- the death penalty had just been reinstated across the country. But capital cases were the new proving ground for hotshot attorneys who wanted to make their mark. Ames leaped right in, establishing himself as one of about 15 court-appointed death-penalty attorneys serving San Bernardino County. Stephen Wayne Anderson was his first case.
Early in the morning on Memorial Day 1980, Anderson, who was a homeless wanderer, broke into the Bloomington home of Elizabeth Lyman, an 81-year-old retired piano teacher. While ransacking the house, Anderson was, according to the defense, surprised by Lyman and shot her once in the face. He then sat down to a plate of macaroni. San Bernardino County sheriff’s deputies found him at the home three hours later and arrested him. After Anderson confessed to the crime, the police continued to hold him without charge for a total of 76 hours, pushing for further confessions. In so doing, his current attorneys argue, they violated his constitutional right to a prompt arraignment. During the interrogation, Anderson confessed to six killings in Nevada which didn‘t happen and to the two killings in Utah, one a murder for hire and the other of an inmate at a state prison. Anderson was never convicted of either of the Utah killings. “That evidence should have been suppressed,” Margo Rocconi said. “The jury should not have heard it.” Ames made no motion to suppress the evidence, and the Utah killings formed the basis for the prosecution’s case in seeking death for Anderson.
Defending someone charged with a capital crime is never easy -- beyond the intricacies of the law there is the gruesomeness of the crime, the loss of life, the grief of the victim‘s loved ones. Nowhere do California juries come down harder on defendants than in the so-called “death belt,” the string of towns and rural communities that make up San Bernardino County. Ames was aware of this difficulty, and seemed resigned to it. “The general population in San Bernardino County is much more punitive than the rest of the state,” Ames said during a court hearing on his effectiveness in the Anderson case. “It is very difficult to escape the death penalty in a case brought in San Bernardino County courts.”
In this case, however, it was not the burglary and murder of Lyman that spurred the state to seek the death penalty, but Anderson’s confession to the Utah killings. Indeed, Thomas Glasser, who was the prosecutor at Anderson‘s trial, later testified that it was unlikely that a felony murder alone would automatically have been charged as a capital case at the time.
Two other San Bernardino cases cited by Anderson’s appellate attorneys reinforce Glasser‘s testimony: a 1981 murderrobbery in which a young woman was robbed and shot in the head at the drive-through window of a Jack-in-the-Box restaurant, and another case around the same time in which the defendant stabbed a store customer to death after stealing four six-packs of beer. The state did not seek the death penalty in either case.
In preparing for the Anderson case, Ames kept no handwritten notes and conducted just two interviews, of Anderson’s father and stepmother. When asked about this later, Ames said that he could see no reason to interview Anderson‘s friends or family members and that his client did not provide the names of potential witnesses. But the court record shows that Anderson asked only that the attorney not speak to his father, a request Ames denied. Other evidence of Ames’ slipshod performance: Thousands of dollars approved by the courts to investigate the case went unspent.
Three jurors interviewed later by Anderson‘s appellate lawyers said other jurors pressured them into voting for death, and that Ames was so ill-prepared that they had little recourse in the jury room. They said that if Ames had presented any witnesses or other evidence to humanize Anderson, it would have helped them make the case to other jurors as to “why he should have been shown mercy.” Said one, the decision to vote for execution “has haunted me over the years.”
It is unclear how many capital cases Ames handled in his tumultuous career. In a deposition on the Anderson case just a year before Ames’ death, the attorney testified that he had been appointed to handle 11 capital cases and that nine of them ended in a death sentence. A review of San Bernardino County court records showed Ames working on only seven capital cases, four of which resulted in a death sentence (two of those, Wade and Mayfield, having been overturned). Inquiries into other counties, including Riverside, Orange and Los Angeles, where Ames said he occasionally had clients, turned up no capital cases.
In the late 1980s and early 1990s, Ames‘ health declined. He had acute diabetes, and in 1993, at the age of 71, suffered a near-fatal heart attack. He recovered well enough to resume his practice, but after his retirement in 1996 he became reclusive. When Ames died in November of 1999, a month short of his 78th birthday, the San Bernardino County Sun carried no obituary of the larger-than-life attorney. His family and friends did not learn of his death until weeks or months after his burial at Riverside National Cemetery. It’s strange, Farber said, that his friend is most remembered for the cases he messed up. “The thing is, by being incompetent he bought some of his clients more years of life,” Farber said. “That‘s the irony in these cases: There’s a premium on being incompetent.”