Attorney’s alleged racism leads to new trial for convict

A federal appeals court has granted a new trial to an African American man serving life in prison for a 1989 murder who learned, after his lawyer’s death, that the attorney was a racist who regularly expressed contempt for minority clients.

After San Bernardino attorney S. Donald Ames died in 1999, his daughter and others described incidents in which he used racial slurs to refer to nonwhites, particularly African Americans. In 1990, the Ninth U.S. Circuit Court of Appeals said, he described a client who had been sentenced to death as a “n—” who “got what he deserved.” He said black people “can’t learn anything,” declared that a Latino client “deserved to fry,” and referred to an Asian

American judge as a “f— Jap” who should “remember Pearl Harbor.”

In 2018, a threejudge panel of the appeals court acknowledged Ames’ racism but said it was required to uphold Ezzard Charles Ellis’ murder conviction, based on past precedents, because Ellis had not been aware of Ames’ bigotry during his trial and could not show that it had affected the attorney’s performance.

But the full appeals court then granted a rehearing, and on Wednesday a larger court panel voted 101 to overturn Ellis’ conviction. The majority did not explain the ruling, saying only that the state attorney general’s office, which represented the prosecution in Ellis’ appeal, had agreed that the conviction should be reversed.

But three judges in the majority issued a separate opinion relying on the court’s 1994 ruling that overturned the bank robbery conviction of a black man whose lawyer addressed him with a racial slur and threatened substandard representation if he went to trial. Based on that ruling, the judges said Wednesday, a court can presume that a racist lawyer did not provide adequate legal representation to a minority client.

“A trial is fundamentally unfair if defense counsel harbors extreme and deeprooted ill will toward the defendant on account of his race,” said Judge Jacqueline Nguyen, joined by Judge Mary Murguia and Chief Judge Sidney Thomas. They also noted that Ames had not objected to the seating of an allwhite jury.

In dissent, Judge Consuelo Callahan said Ellis’ conviction should be upheld because he had not shown that Ames’ “racist beliefs adversely affected his performance at trial.”

“The task before us is not to eradicate every vestige of racism in the criminal justice system, as important as that goal may be,” but only to decide whether the evidence shows Ellis’ right to legal representation was violated, Callahan said.

Ellis was charged with the robbery and fatal shooting of a customer at a McDonald’s drivein restaurant in San Bernardino County. He was tried five times, with two mistrials because of witness unavailability and two more because of deadlocked juries, before a jury found him and another man guilty in 1991.

Ames represented him in the last four trials. Unlike the prior panels, Nguyen said in her opinion Wednesday, the jury that convicted Ellis was allwhite, after prosecutors, without objection by Ames, successfully challenged the prospective black jurors.

While Attorney General Xavier Becerra’s office told the appeals court at a hearing in June that Ellis’ conviction should be overturned, the San Bernardino County district attorney’s office filed arguments defending the conviction. The district attorney’s office was not available for comment about plans for a retrial.