[Deathpenalty]death penalty news----TEXAS, FLA., ALA., CALIF.

[Rick Halperin]

Jan. 26


TEXAS:

Death row man carried to his execution


A man who murdered four people in a Texas drug dealer rip-off was carried
to his execution today when he refused to leave a Texas jail's death house
cell voluntarily.

Asked by a warden if he had any final statement, Marion Dudley did not
respond.

Dudley, 33, of Tuscaloosa, Alabama, had earlier said he wasn't at the
house on June 20, 1992, where six people were bound and then shot, 4 of
them fatally, in what authorities said was a drug dealer rip-off.

He kept his eyes closed and never turned his head toward witnesses in the
chamber, which included 1 of the survivors of the shooting and relatives
of one of the people killed.

8 minutes later at 6.16pm CST (11.16 AEDT Thursday), he was pronounced
dead.

Prison officials in Huntsville, Texas, said Dudley was not combative, but
that he wouldn't walk to the execution on his own.

Dudley, who had a record in his home state for burglary, assault,
receiving stolen property and violating probation, was the 1st Texas
inmate put to death this year.

19 convicted killers were executed in 2005 as Texas maintained its
notoriety as the nation's most active capital punishment state.

Another murderer is set for lethal injection next week and 3 more in
February.

They are among more than a dozen Texas prisoners with execution dates in
the first 5 months of this year.

Dudley's lawyer had hoped the US Supreme Court would stop his punishment,
arguing prosecutors improperly withheld from defence lawyers at his
capital murder trial a letter to Alabama parole officials regarding an
inmate from that state who testified against Dudley. But the high court
rejected the appeal a few hours before the execution.

The 2 survivors identified the then 20-year-old Dudley as one of the three
gunmen who barged into the home of Jose Tovar, 32, and his wife, Rachel,
then 33.

In a recent interview on death row, Dudley said they were wrong.

"I was not," he said.

Jose Tovar was fatally shot in the head, as were his wife's son, Frank
Farias, 17; Farias' girlfriend, Jessica Quinones, 19, who was 7 months
pregnant; and a visiting neighbour Audrey Brown, 21. Rachel Tovar and
another friend, Nicholas Cortez, then 22, survived.

All the victims were bound with towels or strips of sheets, hands tied
behind their backs and nooses around their necks. Rachel Tovar managed to
crawl to a neighbour's house for help.

After watching Dudley die, Tovar, 48, said she "can be at peace, knowing
that I represent my family, my children, my husband".

"There's a little relief in me," she said, tears running down her face.

But, "I lived this going on 14 years and there's not ever going to be
something to help me forget it. It's never going to go away."

Maricella Quinones, whose sister died in the gunfire, said the execution
didn't match her sister's suffering.

(source: Associated Press)






FLORIDA:

High Court to Hear Lethal-Injection Case


The Supreme Court agreed yesterday to decide when death row inmates may
challenge lethal injection as a method of capital punishment, in a
surprise decision issued after the justices dramatically stopped the
execution of a Florida prisoner who was already strapped to a gurney
preparing to die.

Clarence E. Hill, 48, convicted of murdering a Pensacola police officer in
1982, had refused a final meal and needles had punctured his arm when the
Supreme Court stayed his execution. The court said it would hear his claim
that he should have an opportunity to argue that his civil rights would be
violated because the chemicals used to execute him would cause excessive
pain.

It is a claim that has been pressed with growing frequency by capital
defense lawyers around the country in recent years -- but that has
generally not yet succeeded, either in lower courts or at the Supreme
Court.

37 of the 38 death penalty states use lethal injection, as do the U.S.
military and the federal government. Since the chemical mixtures in all
jurisdictions are similar to those used in Florida, a victory for Hill at
the Supreme Court could tie up the death penalty across the county in
litigation, at least temporarily, legal analysts said.

"It certainly could be a mess," said Douglas A. Berman, a professor at
Ohio State University who specializes in criminal law. According to the
Death Penalty Information Center, an anti-death-penalty organization, at
least 25 inmates are scheduled for execution between now and the end of
June, when the court would probably issue a decision.

The Hill case does not ask the court to rule directly on the
constitutionality of lethal injection -- which states adopted as an
alternative to hanging, gas, electrocution and shooting -- even though
Hill maintains that the particular mix of chemicals used in Florida would
cause him an unconstitutional degree of suffering.

Rather, the case raises a procedural problem: what recourse there should
be for a prisoner who finds out at or near the last minute that the method
by which the state proposes to execute him might be "cruel and unusual"
punishment.

Normally, death row inmates try to fight their sentences through claims
that their constitutional rights were violated at trial. Congress and the
Supreme Court have limited those appeals, known as petitions for habeas
corpus, and once they run out, further efforts are generally not allowed.

But for years capital defense lawyers have argued that a separate federal
civil rights statute creates a way to press constitutional claims between
the time an inmate exhausts habeas corpus and the actual moment of
execution.

Hill tried to persuade the U.S. Court of Appeals for the 11th Circuit,
based in Atlanta, to give him a day in court to argue against Florida's
lethal-injection protocol, based in part on an article about lethal
injection in the Lancet, a medical journal.

The article, published in 2005, said that 21 of 49 inmates executed by
lethal injection in Arizona, Georgia, North Carolina and South Carolina
may have been conscious and feeling pain.

The 11th Circuit dismissed Hill's appeal, and he remained scheduled to die
at 6 p.m. Tuesday. But the Supreme Court intervened, setting oral argument
in the case for April 26.

The court's decision was a surprise to legal analysts because the court
issued a stern rebuke of a similar last-minute challenge by a California
death row inmate in 1992, and avoided the issue of permitting last-minute
civil rights appeal in 2004. At that time it noted that "imposition of the
death penalty presupposes a means of carrying it out."

But the court's most liberal members, Justices John Paul Stevens, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer, have indicated an
interest in the question of challenges to lethal injection.

In May 2005, they dissented from a 5 to 4 ruling that denied a stay of
execution for a Missouri death row inmate on a similar issue.

Whether there would be 5 votes on the court to support Hill's claim is
another question. The case is likely to be heard by a court that includes
2 new conservative justices appointed by President Bush: Chief Justice
John G. Roberts Jr. and Judge Samuel A. Alito Jr., whose Senate
confirmation is expected this week.

The case is Hill v. Crosby , No. 05-8794.

(source: Washington Post)

******************

Panel agrees to expand DNA testing after Dedge testimony


Wilton Dedge, who was freed after spending 22 years in prison for a rape
he did not commit, urged Florida lawmakers to give other wrongly
imprisoned inmates a chance to prove their innocence through DNA testing
just as he had done.

Dedge spoke before 2 legislative committees Wednesday. One panel then
approved a bill that would lift a deadline for inmates with old cases and
extend testing to those who pleaded guilty or no contest, in addition to
those convicted by judges or juries.

"An innocent man shouldn't spend another day in prison for something he
didn't do," Dedge told the Senate Criminal Justice before it unanimously
voted for a bill (SB 186) introduced by Sen. Alex Villalobos, R-Miami.

Villalobos said it shouldn't matter how an innocent person got behind
bars. Some plead guilty or no contest because of bad advice, are just dumb
or want to avoid getting a harsher sentence if they go to trial and lose,
he said.

"This is just plain old truth and it leads you to wherever it leads you,"
Villalobos said. "Feelings will be hurt, but too bad."

Jennifer Greenberg, executive director of the Florida Innocence Initiative
that helped free Dedge, said of 174 inmates exonerated across the nation
by DNA, 7 had entered guilty pleas including a mentally retarded man in
Florida.

The latest Florida inmate to be freed through DNA testing is Alan Crotzer.
He was released Monday in Tampa after serving more than 24 years in prison
for rapes and armed robbery.

Dedge, now living in Port St. John, is becoming a familiar figure in the
Florida Capitol. He watched from the House and Senate galleries in
December as lawmakers appropriated $2 million to compensate him for the
time he spent in prison.

Sen. Rod Smith of Gainesville, a former prosecutor and now a Democratic
candidate for governor, said he initially had been reluctant to allow
testing for those had pleaded guilty or no contest.

"Ultimately, the larger question is do you have the right guy?" Smith said
before voting for the bill. "If you've got the wrong person, the system's
integrity will be in question."

The Legislature previously had opened a 4-year window to DNA testing,
although limiting it to those who had been convicted.

It was due to shut on Oct. 1, 2005, but the Florida Supreme Court is
holding it open until July 1 so the justices can decide whether to
continue testing beyond that date regardless of what the Legislature does.
Gov. Jeb Bush also has ordered government agencies to preserve biological
evidence so it can be tested.

Dedge also appeared at a workshop session on an identical bill (HB 61)
before the House Criminal Justice Committee, which will vote on a later
date.

"There is a need for this," Dedge said. "22 years ago I wouldn't have
believed it, but after what I've lived through, I know that it happens."

(source: Associated Press)






ALABAMA:

Death penalty bills spark debate between senators, activists


A series of bills to apply new safeguards in capital punishment cases
sparked a heated debate Wednesday among pro-death penalty activists and
state senators backing the measures, with one lawmaker accusing a state
prosecutor of sounding "heartless."

The bills, sponsored by Sen. Hank Sanders, D-Selma, would prevent judges
from overriding jury recommendations on death penalty cases, authorize DNA
testing for death row inmates, ensure that mentally retarded inmates are
not executed and impose a 3-year moratorium on executions while a special
committee examines Alabama's capital punishment system.

Assistant Attorney General Clay Crenshaw, the head of the state's death
penalty appeals office, told the Senate Judiciary Committee that Alabama's
capital punishment laws are sound.

"No innocent people have been executed in Alabama," he said at the
committee's public hearing.

In a heated exchange, Sen. Vivian Figures, D-Mobile, said Crenshaw
couldn't possibly know for sure whether innocent people were executed. The
prosecutor stood by his statement with an "I do know that."

"You're just so adamant," Figures told Crenshaw. "You sound so heartless
and so close-minded."

Sanders and Figures both stressed that capital punishment
disproportionately hurts blacks, pointing out that half of the inmates on
Alabama's death row are black, while blacks only make up about 25 percent
of the overall state population. They said a moratorium would allow time
to investigate such disparities.

"If you're poor, your chances of ending up on death row increase
dramatically," Sanders said. "If you're black, your chances of ending up
on death row increase dramatically."

Both victim's rights advocates and supporters of the 4 bills also made
impassioned pleas to the committee, which will vote on the package at a
later date.

"This is not a black-white issue - this is about wrong versus right," said
Shelley Linderman, a member of Victims of Crime And Leniency. "The only
person who does not have a choice is the victim."

Linderman said judges should have a right to override jurors who recommend
life sentences if they believe the case warrants the death penalty. While
she and death penalty supporters said they wouldn't staunchly oppose DNA
tests, they did stand against a moratorium, saying it would prolong the
appeals process.

"When are we going to have closure for our victims?" said Miriam Shehane,
executive director of VOCAL.

Crenshaw agreed, saying, "We have a moratorium in this state - it's called
a 10-step appeals process." He added that in his experience, death row
inmates waited until after their execution dates are set before asking for
DNA tests.

Esther Brown, who works with an anti-death penalty group, said the
proposed moratorium is gaining support around the state. Her group has
persuaded 37 local governments, largely in rural areas with mostly black
and poor residents, and about 550 businesses, churches and other
organizations, to call for a moratorium, she said.

Willie Mae Whitlow, who said she has a relative on death row, told the
committee that the bills were crucial to prevent the wrongful killing of
the innocent.

"It is better that a guilty person go free or at least get life in prison
than an innocent person to get executed," she said.

Sanders, who has unsuccessfully introduced similar legislation over the
past five years, said he was confident that the bills would gain momentum
during this session. He said he became more hopeful after the state's
largest newspaper, The Birmingham News, recently took a stand against
capital punishment.

"I feel like support is growing across the state of Alabama and that
growing support will impact the support in the Alabama Legislature," he
said.

(source: Associated Press)






CALIFORNIA:

San Quentin Locked Down; Death Row Guard Attacked


A prison guard in the toughest section of San Quentin's death row was
severely slashed Wednesday, forcing the lock down of the entire prison and
the removal of inmates to cages in the exercise yard.

Inmate Richard Penunuri, 27, slashed the officer's lower left arm with a
homemade razor-like weapon when the guard was removing the inmate's
handcuffs in his cell around 10:45 a.m., said Terry Thornton, spokeswoman
for the California Department of Corrections and Rehabilitation.

"When the officer uncuffed one hand, the inmate spun around and slashed
him," Thornton said. The inmate then flushed the weapon down the toilet,
she said.

The officer, who has not been identified, was taken to a Marin County
hospital where he received more than 30 stitches to seal a gash that went
"nearly down to the bone," Thornton said.

The prison immediately went on lock down.

Inmates in the 'bad boy' section of death row's adjustment center were
removed from their cells and taken to individual holding cages in the
exercise yard by an emergency response team.

Those inmates were expected to remain out in the yard overnight and the
prison was to be lit up all night long while guards search their cells for
weapons.

The assault was a 'planned attack', prison officials said, in retaliation
for actions taken over the weekend against members of the infamous Cole
Street Gang. Members of the gang barricaded themselves in their Death Row
cells and had to be forcefully removed.

Penunuri, who was condemned to death in 2001 in Los Angeles County for
killing 2 people and ordering a hit on a witness at his trial, was housed
in the prison's adjustment center for inmates with a history of
disciplinary problems, Thornton said.

Wednesday's stabbing follows an inmate riot less than 2 weeks ago that
broke out at a San Quentin dining hall, injuring 2 staff members and more
than 20 inmates. Inmates were slashed and stabbed with homemade weapons,
including toothbrushes that had been filed to points or with razors melted
into the heads.

(source: Associated Press)

************************

SHODDY, INEPT REPRESENTATION ROUTINELY INFECTS CASES, A REVIEW FINDS --
AND THE DAMAGE TO A DEFENDANT OFTEN LINGERS FAR BEYOND THE TRIAL


At first, after he was wrongfully accused of assault, Bobby Herrera
believed he would find a lawyer who could prove his innocence. But in the
last emotional minutes before he walked into court, attorney John Pyle was
pressuring him to plead guilty.

Pyle already had collected more than $10,000 from Herrera's family. But he
hadn't bothered to interview witnesses who could testify that Herrera
didn't shoot a guest at his girlfriend's high school graduation party. Nor
did Pyle pursue information that Herrera's primary accuser had gone back
on her story to friends.

Instead, in the courthouse hallway that day in April 1998, Pyle offered
this assessment: Herrera would get no more than a year in jail if he
pleaded guilty. If he went to trial, he risked 25 years in prison. And a
trial would mean thousands more in legal fees.

Herrera, 19, couldn't bear the thought of costing his parents -- his
father was a forklift operator, his mother a home health care provider --
more money they did not have. "I had no choice but to plead," he recalled
recently.

But Pyle had misled him horribly. Herrera received a five-year prison
sentence. And the family ultimately would pay tens of thousands more in an
agonizing legal journey to free Herrera, a journey hindered by more
ineffective lawyering and an unsympathetic appellate court.

Herrera's saga -- which was detailed in court records and interviews with
participants -- is one of more than 100 uncovered by the Mercury News in
which the quest for justice was undermined by poor representation. The
paper's analysis, based on a review of 727 criminal appeals, hundreds of
interviews and scores of additional cases, provides an unprecedented look
at the scope of this problem.

The review showed how attorneys' failures contribute to a system that
repeatedly favors the prosecution. Often, the errors were so appalling
that they would seem unthinkable even to first-year law students: failing
to interview witnesses, gather crucial evidence or know basic criminal
law. Experts who reviewed the Mercury News' findings emphasized that
another set of problems was just as critical: Attorneys repeatedly failed
to respond aggressively to prosecutorial misconduct, a breakdown of the
adversarial process that invites violations of defendants' rights.

In the worst cases, as in Herrera's, the attorneys' failures were so
fundamental that they left doubts about the guilt of convicted defendants.

Compounding the problem, the review found that the errors plagued
defendants far beyond trial. Appellate justices routinely declined to
consider allegations of misconduct by prosecutors or errors by judges when
attorneys had failed to challenge the behavior at trial.

The newspaper review found the problems began at the earliest stages of a
case, and continued all the way through trial and appeal:

-In nearly 20 cases, defense attorneys failed to take simple steps to
investigate and prepare their cases for trial. Some attorneys went to
trial without ever meeting their clients outside the courtroom. Some
neglected to interview obvious alibi witnesses. Some accepted without
question reports from prosecutors' medical and forensic experts that were
ripe for challenge.

-Once in the courtroom, defense attorneys failed their clients in dozens
of additional ways. Some did not introduce key evidence -- including
evidence promised to jurors during opening statements. Others did not ask
judges for rulings or jury instructions that were crucial to helping their
clients. One defense lawyer so misunderstood the rules of evidence that he
permitted his client to testify at a preliminary hearing without realizing
the prosecutor could then introduce that testimony at trial.

-In 60 cases, defense attorneys failed to object when prosecutors
introduced inadmissible evidence, asked improper questions or made
prejudicial arguments to juries. Such failures have a lasting impact.
Under court rules, appellate panels need not consider errors left
unchallenged at trial; instead they can deem them "waived," and outside
the bounds of the appeal.

-Attorney errors are not easily corrected. In more than 100 cases, the 6th
District Court of Appeal rejected challenges to the attorney's performance
by issuing single-sentence orders that lacked explanation. Other cases saw
the appellate justices repeatedly rationalize poor conduct. In one
instance, they suggested that an alcoholic lawyer's repeated absences and
tardiness during trial may have been a knowing tactic to permit him time
to sober up before the jury saw him. Twice, justices found no problem with
lawyers who could not legally represent their clients because they had
been suspended by the State Bar of California.

But the review, as extensive as it was, almost certainly understates the
problem: While the Mercury News focused on appellate records, the
overwhelming majority of criminal cases settle without a trial or appeal,
and no record of the attorneys' efforts exists.

"The level of practice is extremely low overall," said appellate lawyer
Michael Kresser, director of the Sixth District Appellate Program, which
reviews hundreds of Santa Clara County cases each year. Attorneys are
trying cases who "don't know the basic tools of trial lawyers," he said,
from "making proper objections and motions to doing adequate investigation
to developing a coherent defense strategy at trial."

Public and private attorneys alike have offered 2nd-rate representation.
Deputy Public Defender Victoria Burton-Burke, for example, explained in
court papers in one case that she hadn't attempted to learn whether any
witnesses who would be testifying against her client had juvenile criminal
records -- information that comes only through seeking court approval --
because she was too busy.

But the newspaper review found a telling distinction, in that private
attorneys' failings are often driven by money. The most unscrupulous
behavior involved a class of private lawyers who take cases for a
relatively low fee, and then boost their profits by avoiding a
time-consuming trial.

Defendants with language barriers and little education found themselves at
the mercy of these lawyers, who pushed them to plead guilty even when it
may not have been in their best interest. In 10 cases uncovered by the
review, defendants buckled; in four of those cases, including Herrera's,
there was significant evidence the defendants were not guilty.

Laurie Levenson, a former federal prosecutor who now is a professor of
criminal law and ethics at Los Angeles' Loyola Law School, calls the
phenomenon of innocent people pleading guilty to crimes "one of my biggest
concerns.

Unfortunately, it happens all the time," she added, because guilty pleas
"take a lot less work."

A little work from his attorney might have produced a compelling defense
for Herrera.

The evidence against him was thin: After gang members crashed the
graduation party, a gunshot hit an uninvited guest in the arm, and 2
witnesses told police the shooter was Herrera. But others at the party
would have said Herrera did not fire the gun. Character witnesses --
including 2 college instructors and his boss at an auto shop -- would have
described Herrera as a model student and employee who had no criminal
record. And Herrera's family had information that one of his two accusers
was saying she had been coerced by gang members into falsely implicating
Herrera.

Pyle never produced a single clue that he had pursued those leads.
Instead, the post-verdict evidence indicates, he had insisted that it "was
the job of the police and the prosecutor" to interview the witnesses.

Reached in Greece, where he now lives, Pyle conceded that he did little
investigative work on the case. But he said he does not recall making some
statements the Herreras attribute to him.

His conduct was only one part of the Herreras' defense nightmare.

Zenaida Herrera was set on hiring a private attorney for her son because
she was convinced he would get better representation. "I believed the
public defender, they can only do so much, not as much as a private
lawyer," she said recently, expressing regret that she was wrong. She
hired Pyle -- the husband of a woman she had once worked for -- for
$10,000 after other lawyers demanded as much as $30,000 to take her son's
case.

She had no idea that Pyle was suspended from practicing law for failing to
pay his bar association dues. That meant he could not legally represent
Bobby Herrera. Nor was she aware that the bar had previously disciplined
Pyle for failing his clients, and was in the midst of an investigation
that would lead to Pyle's disbarment.

Zenaida Herrera began to learn the truth as she found Pyle's office closed
one day, with a deadline for her son's appeal approaching. She went to the
police department, where an officer offered an unnerving comment: He hoped
she had not hired Pyle for legal work.

Pyle recalls telling Zenaida Herrera he had "a problem" with the state bar
but "I didn't tell her what the problem was totally."

After dumping Pyle, Zenaida Herrera hastily settled a lawsuit over
injuries she suffered in a car accident and then used the proceeds to hire
2 other private lawyers. Each did little to help Bobby Herrera challenge
his conviction.

But finally, a capable court-appointed lawyer -- the family's 4th attorney
-- mounted a strong effort in the appellate courts.

The 6th District did not even bother to ask prosecutors for input before
rejecting the appeal. But the state Supreme Court did, and prosecutors did
not contest that Herrera's claim had merit. After the court ordered a new
hearing, the district attorney's office dropped the case rather than
pursue it again.

Finally free, Herrera had spent more than 11 months in prison and more
than $30,000 of his family's money. Among other problems, he had defaulted
on his student loans while locked up. But he since has married his
girlfriend, and they have a daughter.

"I try to go on with my life, to handle it," Herrera said of the
experience. "It is behind me now."

Only a small percentage of defendants suffer the sort of injustice that
plagued Herrera. But his case illustrates much about how the normal
workings of the justice system can go awry.

Overwhelmingly, defendants charged with felonies plead guilty rather than
stand trial -- more than 95 % of convictions statewide occur before trial.
Most often that is because the evidence of their guilt is overwhelming,
and their best chance at a reduced sentence is a plea deal. But judges,
prosecutors and defense attorneys have another powerful incentive to
bargain: The system would quickly break down if a significant number of
defendants demanded jury trials, which are enormously time-consuming.

This pressure can become dangerous when amplified by private attorneys who
also have a strong financial incentive to avoid trial.

In such instances, the Mercury News found, some attorneys may give clients
erroneous legal advice, deny them the benefits of an investigation, demand
more money -- anything to get the case over with.

Said appellate lawyer Kresser: "There are lawyers who will do everything
they can to keep from having to go into a courtroom and try a case."

Avoiding trial

-S.J. lawyer sanctioned for forsaking clients

One attorney with a history of dodging the courtroom -- to the detriment
of his clients -- is San Jose lawyer Rudy Guzzetta. Court records from the
1998 appeal of a San Jose sexual assault case describe a pattern of
pressure to plead.

In 1992, Guzzetta persuaded Maria Soto to plead guilty to second-degree
murder in the beating death of her 3-year-old daughter, telling her she
might get out in less than 15 years if she did, but risked life in prison
if she didn't.

She got the maximum sentence for the crime, 15 years to life, even after
taking his advice.

But Soto won a new trial in 1997, after an appellate panel concluded that
Guzzetta had failed to develop evidence implicating Soto's boyfriend, who
had a history of beating the child and had been a witness against her. The
court also saw a possible explanation for Guzzetta's failure: He was paid
by the boyfriend's family to represent Soto, a blatant conflict of
interest.

The San Mateo County District Attorney's Office retried Soto, but the jury
deadlocked. Soto pleaded no contest to child endangerment and was deported
to Mexico.

"She lost everything," said John Halley, her attorney in the 2nd trial.
"She lost her home, her family, her ability to stay in this country. She
wasn't guilty, but nobody would hear her, including her attorney,"
referring to Guzzetta.

A few years later, Guzzetta made what a judge later called "a minimal
effort" to develop a defense for Raul Horta Pena, who pleaded guilty to
child molestation and was sentenced to 21 years in prison. Pena was
allowed to withdraw his plea in 2000 because of Guzzetta's incompetence
and struck a deal for 8 years.

The state bar placed Guzzetta on two years' probation in 2002 for his
conduct in those and other cases, the latest in a series of sanctions for
the attorney. But other clients have suffered from Guzzetta's behavior
without recourse, among them Jose Reyes Flores.

In 1996, Santa Clara County authorities charged Flores with repeatedly
sexually assaulting his stepdaughter. There were reasons to question the
accusation:

The stepdaughter did not report the abuse until four years after it
allegedly occurred, and by then Flores had separated bitterly from the
girl's mother.

One potential witness said the mother had threatened to make false
accusations against Flores.

Nevertheless, Flores pleaded guilty in the midst of a trial in which key
defense witnesses did not show up -- after Guzzetta neglected to subpoena
them.

Flores later said Guzzetta encouraged his plea with a promise to challenge
his 18-year sentence, telling him that "on appeal I could finally present
my side of the story." That is untrue. It is extremely difficult to
present new witnesses after trial, especially when the defendant has
pleaded guilty.

Guzzetta never even filed a notice of appeal. Court-appointed attorneys
later sought to reopen Flores' case, offering evidence from the Soto case,
but were rebuffed by the appellate court.

Flores recently completed his sentence, after time off for good behavior,
and was deported to Mexico.

In an interview, Guzzetta defended his actions in each of the cases: "I
never browbeat or told them to take a plea. It's their decision."

He denied telling Flores that he could present his side of the story on
appeal, and denied having a conflict of interest in the Soto case.
Further, he said, he does not feel sorry for Soto because he is certain
she killed her daughter.

"I don't have anybody plead guilty who isn't guilty," Guzzetta said.

The little things

-Simple steps neglected at every stage of trial

When attorneys take cases to trial, the opportunities for shoddy legal
work only increase. The Mercury News review found case after case in which
defense lawyers failed at the most elementary tasks. The errors came at
every stage:

-Pretrial investigation: In a gang murder case, the trial counsel never
tried to analyze a tape recording of a confession that included, according
to the police transcript, portions that were "unintelligible." After the
defendant was convicted, an appellate attorney hired an audio expert who
determined that among the unintelligible sections was the defendant's
attempt to ask for a lawyer -- which was ignored, in violation of his
constitutional rights.

-Opening statements: The defense attorney in a murder case said the
evidence would show there were no identifiable fingerprints on the barrel
of the revolver that was used in the crime. In fact, as he clearly should
have known, the evidence showed his client's fingerprints on the barrel --
and the prosecutor exploited that misstatement along with several others
to brand the entire defense case "wishful thinking."

-Witnesses: In an aggravated-assault case, one witness had told police at
the scene that it was another man -- not the defendant -- who had used a
blunt instrument to strike the victim. But the defense attorney made no
effort to call that witness to testify, explaining later that she had
hoped the judge would allow the police report as evidence.

-Closing arguments: One attorney ended a trial by telling the jury he
would not review the evidence because "I want you to rely on your notes
and rely on what is part of the record, the official transcript." A legal
expert cited in the appeal called the closing argument a "total abdication
by counsel."

Rolling over

-Failing to challenge prosecutors costly

The Mercury News found that one class of trial errors was particularly
damaging for defendants -- errors that involved defense attorneys'
failures to act as a check on prosecutors.

When the prosecution reveals forbidden evidence or makes an improper
argument, such an action can prejudice the jury's view of the case. But if
the defense lawyer fails to object to the improper behavior, the impact
may resonate even after the trial. Under the rules of court, issues left
unchallenged in the courtroom may be deemed "waived," meaning they are not
open to appeal.

The Mercury News found 60 cases in which the 6th District Court of Appeal
declined to consider possible errors, saying the acquiescence of the trial
attorney served to "waive" the issue.

Often these waivers involved evidence so obviously prejudicial that it is
difficult to imagine any defense attorney could pass it by. Court cases
have long made clear, for example, that a defendant's withdrawn guilty
plea should not be mentioned at trial.

Nevertheless, in Daniel Nieblas' trial for possession of heroin, the
prosecutor described at length Nieblas' original plea of guilty. He went
on to characterize the defendant's decision to withdraw the plea as a
"tantrum."

Defense attorney Adrienne Dell failed to object to any of the repeated
mentions of the plea, although at one point she asked the judge to declare
a mistrial, which was denied. The appellate court agreed that the
prosecutor's conduct was "troubling." But it said Dell had waived the
issue through her failures, so it was not a subject for appeal.

Dell recently said she chose not to object so the jury would not think she
was trying to hide something.

The court's use of waiver findings raised another question: whether
appellate justices might overuse waiver to avoid declaring error and
overturning convictions.

In some cases, the Mercury News review found, the appellate opinions even
misstated the facts of a case to justify the waiver -- claiming, for
instance, that an attorney hadn't objected to improper evidence when the
record showed clearly that he had. Presiding Justice Conrad Rushing said
he is especially concerned that waiver may be overused.

In an interview, Rushing said he does not consider it the "noble thing we
signed on for" to find technical reasons to avoid deciding error. He
labeled that technique "gotcha" jurisprudence.

High threshhold

-Court stretches to excuse bad counsel

The court's handling of waiver rulings is only a small piece of a larger
phenomenon, the Mercury News found: Defendants who blame their convictions
on incompetent attorneys rarely find sympathy from the 6th District Court
of Appeal.

In part, the court's resistance reflects the mandates of law. A long line
of California court rulings has set a high standard to challenge an
attorney's representation. The defendant must demonstrate the errors were
so severe that a jury probably would have reached a different verdict
without them. Even then, a court will not grant relief if it determines
the attorney had a tactical reason for the conduct -- perhaps, for
instance, the attorney did not object to a prosecutor's fleeting mention
of a defendant's criminal history so as not to call attention to it.

In just a handful of cases in the Mercury News review did the court find
an attorney's representation so poor that it met this threshhold. Monty
Lopez's experience with his lawyer was one. Lopez had been convicted of a
felony for resisting officers who came to his house to quiet a
disturbance. In the trial, Lopez's attorney sat by while the prosecutor
undermined the credibility of defense witnesses with questions about their
own past arrests and convictions.

Deputy Public Defender Alfred Spielmann, a relatively inexperienced
attorney, also failed to object to the introduction of statements that
Lopez uttered after he invoked his right to an attorney.

The court said no reasonable attorney would have made those errors.
Assistant Public Defender Nancy Brewer said the case spurred her office to
provide additional training for its attorneys in countering prosecutors'
tactics.

Defendants who fail to overturn their convictions on direct appeal have a
second avenue of attack -- the habeas corpus petition, which allows the
introduction of evidence not heard at trial. Often these petitions are
used to present evidence of an attorney's behavior, such as failure to
meet with a client or failure to investigate the case.

The 6th District typically is hostile to these challenges. For every
petition it grants, the 6th District rejects more than five others in two
words -- petition denied -- without offering an explanation or even asking
prosecutors for feedback, the newspaper review found. Even in cases in
which the court responds favorably, the defendant generally ends up no
better off.

The court orders a new trial in just 1 in every 4 of the small pool of
cases in which it grants relief. In the remainder, appellate justices send
the case back to the Superior Court for a hearing on the new evidence; a
sampling of those hearings shows the defendant won relief less than 1/3 of
the time.

"The courts have a bias toward finality," said David Sklansky, a former
federal prosecutor and a faculty member at the University of
California-Berkeley's Boalt Hall School of Law, who reviewed the Mercury
News' findings. "They are not eager to reopen cases and overturn
convictions because of attacks on the work of defense counsel."

The Mercury News review bore this out. Often, the court goes to
significant and even surprising lengths to avoid finding fault.

Justices rejected Christopher Taylor's appeal, even though his attorney,
Robert Mitchell, was suspended from practicing law throughout Taylor's
bank robbery trial for failure to pay child support.

Just because Mitchell could not legally represent Taylor did not mean that
his representation was inadequate, the court said.

Nor was the 6th District concerned by the performance of Herman Cowan, who
represented Barry Parham during his trial and conviction for possessing
cocaine for sale.

>From the start of jury selection -- when Cowan said he had a family
emergency -- through the verdict, Cowan was late one day after another.
Cowan was even tardy for a hearing on whether he should be held in
contempt for his repeated tardiness. On several occasions, a frustrated
Judge Gregory Ward told the jury that Cowan was the reason for delays to
the trial.

Finally Cowan offered Ward an explanation for his repeated failures to
appear: The attorney, who already had a history of discipline for
misconduct, said he was battling alcoholism. On appeal, Parham contended
these absences, and Ward's courtroom expressions of impatience, unfairly
turned the jury against him.

But the 6th District Court of Appeal found Cowan's representation to be
sufficient -- and said his irregular schedule may have been tactical.
Perhaps, the appellate panel said, Cowan had waited to sober up before
coming to court "in order that he could function at the level of a
reasonably competent advocate when he did appear."

Both Mitchell and Cowan eventually were disbarred for a pattern of
misconduct -- and the disbarment order for Cowan even cited the Parham
case. Nevertheless, Parham served his full sentence, and Taylor remains in
prison.

(source: San Jose Mercury News)