Phillip Cherney has represented some notorious clients in his time, notably infamous Oakland drug czar Felix Mitchell Jr. in the mid ’80s and Joel Radovcich, whom Fresno, Calif., social climber Dana Ewell hired to murder his sister and wealthy parents in 1992.
Both cases made big headlines, but pale in comparison to that of the Visalia, Calif., solo’s current high-profile client: Richard Allen Davis, who made national news, and ushered in the state’s Three Strikes law, when he murdered 12-year-old Polly Klaas in 1993 after snatching her from her Petaluma, Calif., home during a slumber party.
Cherney has the unenviable task of going before the California Supreme Court on Tuesday during oral arguments in San Francisco to plead for the ignominious death row inmate’s life. Cherney knows he has his work cut out for him, noting in court papers that Davis, 54, is “one of the most reviled defendants” in recent California history, a man who was met with chants of “kill the beast” outside the courthouse during his 1996 San Jose, Calif., trial.
“He’s Quasimodo,” Cherney said last week. “Nobody wants to get near him.”
But Cherney, who’s 59 and says he’s never had a client sentenced to death in five capital cases at trial, isn’t daunted. In fact, he’s rarin’ to go.
“Handling complex litigation and big, serious cases has been something I’ve been involved in probably for the last 20 years,” he said in a lengthy telephone conversation, “and Mr. Davis has been a cooperative client and, you know, I consider it an honor to represent him in a case I feel strongly about.
“Again, as unpopular as he is,” Cherney added, “he’s still entitled to the same rights you and I are entitled to and especially when it’s someone who’s despised as much as he is.”
Getting the death penalty dismissed, he admitted, won’t be easy.
“It’s a death penalty case and he admitted to what he did,” Cherney said. “No lawyer came to his aid [right away] and he’s left in a position he’s trying to fend for himself, and he’s got a fool for a client. He ends up putting his own neck in the noose.”
“But,” he continued, “the evidence that he kidnapped [Klaas], broke into the house, committed a burglary is pretty solid.”
Cherney’s strongest arguments in People v. Davis, S056425, are that his client’s Miranda rights were violated when officers secured an admission of guilt in the absence of an attorney, and that moving the trial from Sonoma at the northern end of the San Francisco Bay Area to San Jose at the southern deprived Davis of a fair trial because it kept the case in the same media market that had covered it in a feeding frenzy.
“Of the 12 selected jurors,” Cherney wrote in court papers, “all but one … had relied on inflammatory Bay Area media sources to obtain explicit details surrounding the case, and of the other 11 at least eight had prejudged appellant guilty.”
Davis’ trial lawyer had argued to move the proceedings to San Diego.
The attorney general’s office, represented at oral argument by San Francisco-based Supervising Deputy AG Ronald Matthias, contend that Davis waived his Miranda rights and that he enjoyed no special right to have his case tried as far from the Bay Area as possible.
“Rather,” Matthias wrote in court papers, “due regard for hardship [on trial witnesses] and the ameliorating effects of proximity argued strongly for selecting Santa Clara County.”
Cherney was admitted to the California Bar in 1977, after graduating from Lincoln Law School of San Jose, a night school accredited by the State Bar. He said he spent his first 10 years in private practice in Palo Alto, Calif., the next seven years as a Tulare County deputy public defender and then back to private practice, this time in Visalia — 40 miles south of Fresno — emphasizing death penalty defense.
Currently, he said, he’s handling both the direct appeal and the habeas corpus cases of Davis and four other death row inmates.
Long before the Davis case, Cherney made his name by defending Mitchell, a well-known East Bay drug kingpin who was credited with creating the country’s first large-scale, gang-controlled drug operation. Cherney represented Mitchell in federal court, where he was sentenced to life without parole.
While the conviction was on appeal, Mitchell was stabbed to death in Leavenworth Federal Penitentiary. And according to press reports, thousands of people lined the streets of Oakland for eight miles in 1986 to see the funeral procession in which Mitchell’s bronze casket was pulled by a horse-drawn carriage driven by a man in top hat and tails.
A year later, the 9th U.S.Circuit Court of Appeals threw out Mitchell’s conviction because he was killed before his case could be heard.
In the Radovcich case, Cherney’s client also received life in prison. According to press reports, Radovcich was hired by his lifelong friend, Ewell, to murder his parents, Dale and Glee Ewell, as well as his sister, Tiffany, so he could inherit the family’s $8 million estate.
The Easter Sunday killings shocked Southern California and the trials of Ewell and Radovcich were followed closely by the Los Angeles Times and other media outlets.
A documentary on the Arts & Entertainment Network was made about the crime, as was a book titled, “Catch Me If You Can: A California Saga of Murder, Greed and Two Heroic Detectives.”
Cherney said those cases and others over the years showed him what it was like to try cases in the bright lights of media attention. So, if anything, the Davis argument shouldn’t be a big deal: The spotlight was on Davis’ trial, Cherney states, not his appeals.
“One does not have to deal with the media on a daily basis, which is taxing,” he said.
And even though Cherney realizes he will argue before seven justices who uphold most death sentences appealed to them, he’s remaining upbeat.
“I’m an optimistic person and I believe in the Constitution and I hope they do, too,” he said. “The issues that I’m going to present and have presented are, I think, meritorious and I think there’s a tremendous amount of pressure on those justices. I just pray they will do the right thing.”
Cherney said none of his family or friends has given him any grief over representing Davis because he has handled many nefarious characters, including Joseph Lopez, who in December was sentenced to life in prison for murdering a 16-year-old Fresno girl in 2006.
“There’s always that with people who don’t know you,” Cherney said. “But people who know me know I take it seriously. It’s part of a faith not only in the rule of law, but in a higher faith.”