Appeals court tosses death sentence for Calif. inmate

SAN FRANCISCO " For the second time this month, a federal appeals court in San Francisco tossed out a death sentence on the grounds that the defendant had inadequate legal counsel.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled Tuesday that convicted killer Henry Earl Duncan's lawyer failed to present evidence that may have shown his client had an accomplice. The appeals court kept in place Duncan's first-degree murder and robbery convictions.

A Los Angeles County jury convicted Duncan in 1986 of robbing and stabbing to death his supervisor at a Los Angeles International Airport restaurant where he worked two years earlier. Blood recovered at the scene didn't match either Duncan or the victim, the appeals court noted, suggesting Duncan had an accomplice.

But the appeals court, in an opinion written by Judge Stephen Reinhardt, said that the failure of Duncan's lawyer, John Cheroske, to have his client's blood tested or call a blood expert during trial was a big enough gaffe to toss out the death sentence.

Reinhardt said the jury may have been persuaded to sentence Duncan to prison if it was shown the possibility that someone else may have done the actual killing.

"Having Duncan's blood tested posed no risk to Duncan's defense, but the potential benefit was enormous," Reinhardt wrote.

Cheroske is now a Los Angeles Superior Court judge. He said he recalled very little about the case and said he doesn't "pay much attention," to the appeals court noted for its liberal bent.

The California Attorney General's office, which argued for the death penalty before the appeals court, didn't immediately return a call for comment.

Reinhardt also was the author of another appeals court decision issued on June 14 reversing the death penalty of Fernando Belmontes, who was convicted of the 1981 bludgeoning death of a young woman in San Joaquin County.

Reinhardt wrote that Belmontes' defense lawyer kept the jury in the dark about Belmontes' violent home life that could have led to a less severe sentence.