Xiaolingwei Ellis, a black man, had been tried five times for a 1989 robbery and murder in a McDonald’s parking lot in San Bernardino, Calif., before an all-white jury found him guilty in 1991. Now Ellis wondered: Had his defense attorney not been a racist, might he have been acquitted of murder?
The U.S. Court of Appeals for the 9th Circuit, at least, agrees that Ellis deserves a chance to find out.
In an en banc ruling last week, the court threw out Ellis’s conviction and granted him a new trial after the state of California agreed Ames’s racial animus was so “extreme” that it affected Ellis’s case. No majority opinion accompanied the order. But in a concurring opinion to explain the court’s rationale, three judges described how Ames believed his nonwhite clients “deserved” their convictions, some of which were in death-penalty cases. The racism was “so deep-rooted,” the judges concluded, “that it would be impossible for him to fairly represent a nonwhite defendant.”
“Ezzard Ellis’s lawyer, Donald Ames, was a virulent racist who believed in the inferiority of racial minorities,” U.S. Circuit Judge Jacqueline H. Nguyen, wrote in the concurring opinion. “Ames was disloyal and entirely indifferent to the fate of his non-white clients, convinced that they were all stupid and deserved to be convicted.”
Nguyen was joined in the opinion by Chief Judge Sidney R. Thomas and U.S. Circuit Judge Mary H. Murguia. Only one judge, Consuelo Callahan, dissented on procedural grounds.
The San Bernardino County District Attorney’s Office, which has defended Ellis’s conviction, could not immediately be reached for comment on whether it planned to retry him for the sixth time. Ellis’s attorney, a federal public defender, declined to comment.
The 9th Circuit judges were well acquainted with Ames’s racism — according to his family and colleagues — because they had seen evidence of it in at least two cases before. They had thrown out the death sentences of two black defendants based on Ames’s ineffective counsel.
Ames, who died at 77 in 1999 after years of health problems, was known around San Bernardino County as a bombastic lawyer, keen on gambling and flashy jewelry and “the three-martini lunch,” LA Weekly reported. In the courtroom, he spoke to juries with the bravado of a salesman ― but in the back office, he spoke to colleagues and prosecutors with “chauvinistic” profanity, the paper reported, quoting his colleague.
In the early 1990s, Ames’s own daughters started coming forward to describe their father’s contempt for minorities, believing his nonwhite clients couldn’t get a fair shake.
“His contempt for us was exceeded only by his contempt for people of other races and ethnic groups,” Ames’s daughter Jill Helft said in a court declaration in the early 1990s.
They grew up hearing their father call his black clients the n-word and a host of other racial epithets. Once, after a black client named Melvin Wade got the death penalty in the brutal murder of his stepdaughter, Ames’s daughter Alison Taylor remembered that Ames called the man a “n—–” who “got what he deserved.” She described the incident in a sworn declaration to help the man’s appeal. “We knew this man did not get a fair trial,” Taylor told LA Weekly then. “We wanted the true facts to come out.”
The 9th Circuit would later throw out Wade’s death sentence after finding that Ames “virtually invited the jury to send his client to the gas chamber” in his closing argument, as the Los Angeles Times put it in 1994. For his part, Ames told the Times he fought hard for his client and would never try to help put his own client on death row.
In Ellis’s case, he and one other man were accused of robbing and shooting two McDonald’s customers at the drive-through, seriously wounding one of them and killing the other. Ellis’s first two trials resulted in mistrials, due to problems locating witnesses. The next two resulted in hung juries. Ames represented him in the last four, including the one resulting in a conviction, in which all jurors were white.
Taylor, in a later 2014 declaration, said she remembered that in 1990 or 1991 — the time period when Ellis was on trial — her father described a very similar-sounding crime, saying “how stupid his client was,” and how “such stupidity was typical of African Americans.”
But as Nguyen noted in the most recent ruling, Ames didn’t only make racist comments behind closed doors in the presence of family. He also made the comments in the presence of his own staff, about everyone from nonwhite clients to nonwhite judges — and sometimes to their faces.
Former legal secretaries came forward to describe the time Ames, using a racial epithet, said an Asian American judge should “remember Pearl Harbor,” and another instance he said a Hispanic defendant “deserved to fry.”
The 9th Circuit agreed during oral arguments there was “no question” Ames was a racist. But the judges questioned how Ellis’s attorneys could actually prove this affected his performance during Ellis’s trial.
Ellis’s lawyers conceded there was no way to prove it, save for his failure to push back on prosecutors’ decision to strike all black jurors. They argued Ames’s racism in general was so well-established that they shouldn’t have to point to anything specific he said or did during the trial. His behavior amounted to “presumed prejudice,” they argued, citing Supreme Court cases including United States v. Cronic and Cuyler v. Sullivan.
“The fact that there were two hung juries [in past trials] shows this was a winnable case,” federal public defender Patricia Young told the court. “If Mr. Ames didn’t harbor this racial animus that he did toward his client, would Mr. Ames have tried harder?”
In a surprise move, the California Attorney General’s Office agreed with the prisoner’s argument. The state had argued for years, under both Attorney General Xavier Becerra (D) and his predecessor, Sen. Kamala D. Harris (D-Calif.), that Ellis’s conviction was fair until last summer.
The state suddenly “changed its mind,” stunning the court and opposing counsel. State lawyers said they had spent more time reflecting on the “insidious effects of the deep-seated racism” in the criminal justice system and could no longer defend the conviction.
Going even further, they asked the 9th Circuit to create a “new constitutional rule” that would allow people to challenge their convictions if they can prove their attorney is an avowed racist — even if, on paper, they can’t point to anything specific the attorney did wrong during their trial.
An attorney for the state described the state’s proposed rule as a “strong showing of racial animus, meaning the attorney harbors a strongly held belief that members of the defendant’s race are inherently inferior.”
But the judges were skeptical, questioning where they would draw the line: What if an attorney made a politically incorrect joke, or wore blackface in a college yearbook?
The court made no attempt to write a new rule for racist attorneys in its ruling.
At one point during the oral argument, however, a judge questioned whether they should just write a new rule pertaining to S. Donald Ames.