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An en banc 9th U.S. Circuit Court of Appeals overturned the death sentence of a convicted double-murderer Wednesday, with some judges urging lower courts to err on the side of mercy when deciding appeals of similar gravity. Demetrie Mayfield, who has been on death row since a jury sentenced him for the 1983 San Bernardino, Calif., shotgun killings of two people, will be resentenced because the 9th Circuit held that his attorney was ineffective at the penalty phase of his trial. While the court declined to overturn his guilty verdict on the same basis, it had no reservations in giving Mayfield’s death sentence a vote of no confidence. None of the eleven judges voted to uphold it, although just seven formed the majority. “A reasonable probability exists that the jury might not have sentenced him to death if the jury had considered additional evidence presented at the state evidentiary hearing,” Judge Richard Tallman wrote. Tallman’s opinion, which held that at least some mitigating evidence presented at a later evidentiary hearing should have been put before the jury, was joined by such 9th Circuit conservative stalwarts as Diarmuid O’Scannlain, Pamela Rymer and Andrew Kleinfeld. Mayfield shot two people to death and hid their bodies on the night of Feb. 2, 1983, after one victim filed an auto theft complaint against him. The second victim was killed because he witnessed the crime. During trial, Mayfield was represented by former San Bernardino defense lawyer Donald Ames. Ames logged a total of 40 hours in his defense of Mayfield, whose trial took three days. He first interviewed his client on the morning of the trial and put forth just one witness during the penalty phase. Furthermore, Ames, according to testimony entered into the record, used a variety of racial epithets to describe African Americans. Mayfield is black. The work Ames did — or lack of it — presented the 9th Circuit with enough issues to spawn a dissent and two opinions besides that of the majority. “I am not comfortable with the speculative conclusion reached by the district court that [mitigating testimony] would not have mattered,” Judge Ronald Gould wrote in a concurrence in Mayfield v. Woodford, Case No. 97-99031. He was joined by Chief Judge Mary Schroeder and Judges Michael Hawkins and Marsha Berzon. “On this prejudice issue Mayfield, for whom life or death hangs in the balance, deserves the benefit of the doubt,” Gould wrote, after referencing several quotations urging mercy when justice is in doubt. In 1993, the California Supreme Court denied Mayfield’s automatic appeal. Justice Joyce Kennard dissented, arguing that Ames’ work at the penalty phase was a “total failure.” The late Stanley Mosk, who wrote the majority opinion, later changed his mind and argued for a rehearing, which was denied. “Until the whole [en banc] court took this case, I think no one ever looked at it closely and factually,” said Mayfield’s lawyer, Michael Crain, of Santa Monica, Calif.’s Klein & Crain. “Demetrie Mayfield would have been better off with nobody sitting next to him, with an empty chair.” Four judges, led by Susan Graber and joined by Schroeder, Hawkins and Johnnie Rawlinson, would have granted Mayfield a new trial based in part on Ames’ history of referring to clients, employees and fellow lawyers by racial epithets. “Ames did much more than serve his client indifferently; he actively served the interests of the prosecution. On this record, there is no other explanation than a racially motivated breach of duty of loyalty to petitioner and a concomitant sympathy to the prosecution’s position,” Graber wrote in dissent. Graber pointed to several trouble spots, including Ames’ needless introduction of a full recording of his own client’s confession and Ames’ closing arguments, where he pointed out to the jury that his client denied he killed the victims “until page 88″ of the confession’s transcript. Hawkins wrote the last word on the case, in a partial concurrence and partial dissent joined by Schroeder. In it, Hawkins made explicit references to recent comments by U.S. Supreme Court Justices Sandra Day O’Connor and Ruth Bader Ginsburg that some examination of the application of the death penalty is needed. “It is a painful truth of the death penalty process that these most serious cases sometimes draw the least adequate trial counsel,” Hawkins wrote. “I join Judge Graber in concluding that the deeply conflicted counsel Mayfield had at trial was the functional equivalent of no counsel at all, and I embrace the analysis that shows the representation at sentencing was no better.”

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