Man Ordered Freed or Retried After 10 Years
Courts: Defense was deficient, 9th Circuit says. Inmate's brother admitted the shooting.

   By HENRY WEINSTEIN, LOS ANGELES TIMES
   July 23 2002

   After spending a decade in prison for a shooting that his brother long ago admitted, a Lynwood man may finally gain his release as the result of a federal appeals court ruling.

   The U.S. 9th Circuit Court of Appeals ruled 3-0 Monday that the state must release Jesus Avila or retry him within 90 days. His brother, Ernesto, who was never charged, could eventually be prosecuted.

   Jesus Avila, now 30, was convicted in 1991 of shooting Demetrius Kidd after a gang-related altercation at a baby shower in Ham Park in Lynwood. He was sentenced to life in prison plus eight years, stemming from enhancements due 
   to the use of a firearm and inflicting great bodily harm. His mother, Christine Avila, said Monday that she was elated. "I have been praying for this for years."

   She said her other son, Ernesto, was not at home. He could not be reached for comment.

   Ted T. Yamamoto, Jesus' trial lawyer, failed to investigate reports from witnesses that Ernesto did the shooting and that his client was in another section of the park--even though he believed that Ernesto was the shooter, the 9th Circuit said. That meant Yamamoto provided constitutionally deficient representation, the court ruled.

   The U.S. Supreme Court has set rigorous standards for an inmate to gain a new trial on the grounds of ineffective representation. An inmate must demonstrate both that his attorney's conduct fell well below professional norms and that his case was prejudiced because of the deficient performance.

   The 9th Circuit said that both tests were met in Jesus Avila's case, noting that Yamamoto admitted being "incompetent" at a post-trial hearing.

   "We have repeatedly found that a lawyer who fails adequately to investigate and to introduce into evidence, evidence that demonstrates his client's factual innocence, or that raises sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance," 9th Circuit Judge Harry Pregerson wrote. His opinion was joined by Judges Raymond C. Fisher and Richard C. Tallman.

   Shortly after the incident, Kidd identified Jesus as his attacker, as did another witness.

   However, several other witnesses said that Jesus was far from the scene. Moreover, some witnesses told a private investigator working for Jesus' original lawyer, George Denny, that Ernesto had been the shooter.

   Denny withdrew from the case after talking to Ernesto. Yamamoto was in the courtroom at the time Denny recused himself, and Denny, who was representing Ernesto in another case, told Yamamoto that he had withdrawn because he was "representing someone that ... might have been the shooter." But Yamamoto did not ask Denny who it was.

   Before Jesus' trial, Yamamoto became convinced that Ernesto was the shooter, according to the 9th Circuit decision. But he did not investigate Ernesto's involvement because he believed that Christine Avila, the brothers' mother, "did not want him to implicate Ernesto at trial."

   Yamamoto also explained that he did not "aggressively" investigate whether Ernesto was the shooter because he "entertained a strong belief" that Ernesto was going to admit his culpability during Jesus' trial. But that did not happen.

   At a post-trial hearing, Ernesto admitted, under oath without immunity, that he was the shooter. But Los Angeles County Superior Court Judge William Pounders said he had doubts about Ernesto's credibility, as well as that of other witnesses who testified on Jesus' behalf. Pounders made those assessments after a hearing where he also concluded that Yamamoto had performed competently.

   A state appeals court upheld Jesus' conviction, and the California Supreme Court declined to review. Later, a federal trial judge rejected Jesus' claims that his constitutional rights had been violated.

   The 9th Circuit reversed all those rulings, concluding that Pounders had made clear factual errors, in addition to its findings on Yamamoto.

  "Had Yamamoto conducted a reasonable investigation and zealously represented Jesus at trial, four witnesses could have testified that they saw Ernesto shoot Kidd, 11 witnesses could have testified that Jesus was in the barbecue area when the shooting occurred, and Ernesto might have come forward--or at least made an inculpatory statement that could have been used against him at trial," Pregerson wrote.

   If Yamamoto, a Los Angeles lawyer, had performed as he should have, "there is a reasonable probability" the trial would have turned out differently, Pregerson concluded.

   "The 9th Circuit did exactly what they should have done," said Nancy S. Coan, Jesus' appellate lawyer. "I never believed for one minute that a jury would have convicted him if he got a fair trial. I am still in shock about how many courts ignored the facts in this case."

   Even though he was castigated in the 9th Circuit ruling, Yamamoto said Monday, "I am extremely happy for [Jesus]."

   Hallye Jordan, a spokeswoman for the California attorney general's office, which defended the verdict on appeal, said the office was reviewing the decision and had no immediate comment.

   Sandi Gibbons, a spokeswoman for the Los Angeles County district attorney, said, "We would not make a decision on a retrial," for Jesus, "until we have read the decision."

   Asked about the possibility of charging Ernesto, Gibbons said that there was no statute of limitations in a case of attempted first-degree murder. "If the case was attempted first-degree murder, we could still prosecute him," she said.