California convict gets another chance to escape death row

 

McClatchy Washington Bureau

Richard L. Phillips has learned a lot about the law in the decades since a Madera County murder landed him on California’s death row.

Now, with a nudge from the U.S. Supreme Court, the 63-year-old Phillips will try again to save his own life.

In a case study of legal persistence, he’s secured another trial for part of a crime that occurred nearly 36 years ago. His murder conviction is not in question, but his future is. For that, he can credit the Supreme Court, which effectively gave Phillips another chance when it rejected a petition from California’s attorney general.

“It was quite a testament to his legal abilities,” Fresno defense attorney Katherine L. Hart said.

Hart is Phillips’ legal adviser. Now 70, she’s been helping Phillips with his myriad appeals since 1988. Her work has proven crucial. Still, it was Phillips who wrote the 10-page Supreme Court legal brief – with a declared “business address” of San Quentin State Prison – that countered California’s top law enforcement officer.

In late April, the Supreme Court declined to grant California Attorney General Kamala Harris’ petition on Phillips’ case. That denial, issued without explanation, upheld a 9th U.S. Circuit Court of Appeals decision that set aside Phillips’ death sentence. The initial steps toward a retrial in Madera County Superior Court have begun.

“It’s remarkable. You might have a battery of lawyers working for you, and not have the same success,” Hart said, calling Phillips “very intelligent, very persistent and very demanding.”

Phillips was convicted of killing one man and burning another. While these convictions stand, prosecutors have opted to try him again on the “special circumstances” that made him eligible for the death penalty.

“I do plan on pursuing a retrial,” Madera County District Attorney Michael Keitz said Wednesday. “It’s the right thing to do.”

In December 1977, a jury later concluded, Phillips lured two men to a deserted lot south of Chowchilla, about 35 miles northwest of Fresno, with the promise of stolen insulation material. The two were building contractors who’d previously joined Phillips on an unconsummated cocaine deal.

In the late-night meeting, a jury determined, Phillips killed Bruce P. Bartulis and wounded Ronald Rose with five shots from a .45-caliber pistol. Phillips then poured gasoline over the two men, set them on fire and hit Rose with his car before fleeing, prosecutors said. Rose survived, with burns over 65 percent of his body. He later testified against Phillips, as did Phillips’ former girlfriend, Sharon L. Colman.

After the murder, appellate Judge Andrew Kleinfeld added last year, Phillips “put out contracts to kill” several potential witnesses, although the judge added “they also failed to die on his schedule.”

The role played by Colman and then-Madera County District Attorney David Minier set in motion the subsequent appeals.

Colman, who was 19 at the time of the murder, testified that she hadn’t been promised any benefits in exchange for testimony. Minier said the same thing, calling the suggestion “sheer fabrication, just pulled out of the air, totally meaningless.”

In fact, though, prosecutors had told Colman’s attorney that in exchange for Colman’s assistance, her charges would be dropped. Separately, Fresno-area law enforcement officials agreed not to prosecute Colman on a heroin charge after being contacted by Madera authorities. Colman’s attorney didn’t tell her of the deal, which only became known years later.

“The state can only delay so long,” Phillips wrote in his legal brief to the Supreme Court. “Sooner or later, they are going to have to face the music. Phillips caught Madera County officials with their hands dirty.”

The 9th Circuit Court of Appeals partly agreed, after its own fashion, noting that prosecutors are legally obliged to share potentially exculpatory information with the defense. They also must correct false testimony.

Minier’s “deliberate effort to deceive the jury” by not acknowledging Colman’s plea deal “flagrantly violated due process principles,” according to the appellate court. In a 2-1 decision last year, with Kleinfeld dissenting, the appellate panel called Minier’s actions “deplorable” and concluded that the Madera County jury might have reached a different decision had jurors known of the plea agreement.

The jury’s conclusion that the murder took place during a robbery provided the special circumstance that made Phillips eligible for the death penalty.

“Disclosure of either Colman’s secret deal or the assistance she received with respect to her heroin arrest would have allowed Phillips’ counsel to impeach and discredit a witness whose testimony was absolutely crucial to the state’s special circumstance case,” the divided 9th Circuit concluded.

California officials, in urging the Supreme Court to weigh in, contended the appellate judges had overestimated potential jury reactions.

“The majority granted relief on the basis of little more than speculation with slight support,” the California attorney general’s brief said.

The state’s petition was one of 8,806 submitted to the Supreme Court during its recently concluded term. At least four of the court’s nine justices must agree for a petition to be accepted for a full hearing, and only about 75 cases make the cut each year. The reasons for the rejection aren’t public, but the fact that the 9th Circuit’s decision didn’t conflict with decisions in other appellate circuits lessened its odds.

Keitz said it would be inappropriate to speak in detail about the upcoming retrial, though he indicated it might take a while. Eventually, Hart added, there probably will come a time when Phillips, now in Corcoran state prison, will need a new legal adviser.

“These cases don’t go to trial in 60 days,” Hart said. “They take years.”

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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