Richard Ramirez (Night Stalker) Appeals Death Penalty...Claims "Faulty Defense"

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Serial Killer Seeks Lifeline

More than 20 years after he terrorized Southern California in a grisly killing spree, ``Night Stalker'' Richard Ramirez's challenge to his death sentence is reaching the state Supreme Court.

But when lawyers argue one of the state's most notorious death row cases in the Supreme Court's chambers Tuesday, Ramirez's devil worship and eerie crimes will not be center stage. Instead, the focal point will be a pair of San Jose defense lawyers whose inexperience in capital cases and controversial behavior at trial are at the heart of the effort to get Ramirez's death sentence set aside.

Ramirez, now 46, was condemned to die in 1989 for 13 Los Angeles-area murders that stunned the state in 1984 and 1985. Ramirez, a Texas drifter who warned when he was sentenced to death that he ``will be avenged,'' also was charged later with a San Francisco murder linked to his crimes, in which he strangled, raped, shot and slashed the throats of his victims.

Now, his bid to avoid execution rests on the performance of lawyers Daniel Hernandez and Arturo Hernandez, who were not related. They were retained by Ramirez's family to represent him in a trial that dragged on for months before a jury, after weeks of deliberation, found him guilty of the murders. It is not surprising that the representation by Hernandez and Hernandez is under fire on appeal -- their often bizarre behavior and questionable qualifications threatened to unravel the trial at various stages, and Ramirez's appellate lawyers now say the trial was a farce.

As a result, the Ramirez appeal, as it winds through the state Supreme Court and possibly the federal courts, marks a test of how the courts evaluate questionable representation in death penalty cases when lawyers are hired, as opposed to appointed by the courts. Most murder defendants are too poor to afford their own lawyer.

To death penalty experts, Ramirez's appeal also is a stark example of how important it can be for courts to ensure that even the most nefarious defendant gets adequate counsel at trial. A Mercury News investigation several years ago found that incompetent representation is one of the chief reasons the state and federal courts have reversed dozens of death sentences since 1987.

"The more serious the crime, the more inflammatory the allegations, the more critical it is that the lawyer know what he or she is doing,'' said Elisabeth Semel, head of the death penalty clinic at Boalt Hall School of Law. "There isn't something written in invisible ink in the Constitution that says this right exists except when charged with a horrible crime.''

Hernandez and Hernandez had a combined five years of experience when they took over Ramirez's representation. (Daniel Hernandez died in 2003.) They both had a history of being held in contempt in Santa Clara County for their handling of cases, and their conduct resulted in the reversal of one San Jose murder conviction.

During the course of the Ramirez trial, both lawyers were absent for long periods. Daniel Hernandez was unable to attend for a crucial stretch, citing stress-related illness. Arturo Hernandez was held in contempt for his failure to show up -- in one instance, he was punished for misleading the court when he said he was absent because he needed to attend his brother's funeral in Mexico when in fact he was honeymooning in Europe.

At the outset of the trial, a Los Angeles judge warned Ramirez that the two lawyers were not qualified to handle a death penalty case, but the judge did not disqualify them, because they were chosen and retained by the family. That is the central issue being argued Tuesday. While judges have broad leeway to intervene when indigent defendants get court-appointed lawyers, Ramirez's case is expected to test the Supreme Court's standards for how judges review the qualifications of hired lawyers in life-and-death capital trials.

Geraldine Russell, Ramirez's appellate lawyer, did not return a phone call for comment. But in more than 400 pages of appellate arguments, she says Hernandez and Hernandez undermined Ramirez's right to a fair trial. In particular, she argues that the two lawyers' failure to put on any evidence at the penalty phase of the trial, when the jury decides between life and death, "guaranteed the jury would return a death verdict.''

The trial judge, the appeal argues, had an obligation to bar the two lawyers from the case.

"It was patently obvious even to the most casual observer that both Daniel Hernandez and Arturo Hernandez lacked the necessary qualifications and experience to handle one of the most notorious capital cases in the history of both Los Angeles County and California,'' Russell argues.

Arturo Hernandez, still a practicing lawyer in San Jose, did not return a phone call for comment.

The state attorney general's office, which is defending Ramirez's death sentence, says he got a fair trial, noting the "overwhelming evidence'' of guilt. Prosecutors say the judge was correct in allowing the San Jose lawyers to stay on Ramirez's case.

The California Supreme Court seldom reverses a death sentence at this stage of the appellate process, which is likely to drag on for an additional decade in Ramirez's case.

"Our position is that Ramirez received constitutionally adequate assistance of counsel,'' said Deputy Attorney General Margaret Maxwell, who will argue for the state.