COLUMN ONE : Turning a Deaf Ear to Confession : A man keeps admitting to a slaying for which his brother is imprisoned. The case illustrates how loath appeals courts are to overturn convictions.

By TED ROHRLICH

June 30, 1990 12 AM PT

TIMES LEGAL AFFAIRS WRITER

Xavier Sanders has confessed repeatedly to a 1985 fatal shooting in Compton. He has confessed to lawyers, to his family, to a court in a sworn statement, and most recently, to a newspaper reporter. But the authorities won’t do anything about it.

It’s not that what Sanders says is beyond belief. Some of the eyewitnesses initially identified him as the gunman.

The problem is that Xavier’s brother Sheldon has already been convicted of the crime, and authorities have closed the books on the case.

The situation seems absurd: Sheldon Sanders, who says he is innocent, is in prison--possibly for life--while Xavier, who repeatedly confesses, is free. Or, as Xavier told The Times, “He’s doing the time for something he didn’t do. And I did it.”

Yet, not only prosecutors, but the appellate courts as well, have been unwilling to intervene.

Appeals courts are sometimes criticized by law-and-order advocates for being too willing to free guilty criminals on technicalities. Yet experts say appeals courts rarely reverse convictions and, if anything, fail to hold police, prosecutors and judges accountable to fair trial standards because of their desire to affirm convictions whenever possible.

Intent on overturning convictions only if flagrant violations of due process are found, they are not particularly good at detecting innocence, research shows. As former U.S. Supreme Court Justice Potter Stewart once explained, it is not their job.

“It is not the function of this court to determine innocence or guilt,” he wrote. “Our duty is to uphold the Constitution.”

Gerald Uelmen, dean of the Santa Clara University Law School and president of the California Academy of Appellate Lawyers, said the Sanders’ case is “a textbook example” of appeals courts’ reluctance to second-guess trial judges and juries--even if it means they have to “almost put blinders on.”

Why the reluctance?

Some critics charge that the answer is simple: the legal system does not want to admit its mistakes. “Everybody likes to bury their mistakes in this system,” said Leslie Abramson, a defense lawyer who tried unsuccessfully to reopen Sheldon Sanders’ case.

But prosecutors insist that is not so. “I’m not saying mistakes aren’t made,” said Steven Sowders, head of the district attorney’s Compton office, where the prosecution took place. “I think I’m fairly open-minded about those things.”

But Sowders said he thinks no mistake was made in this case. He said he thinks Xavier Sanders’ confessions are merely an attempt to trick authorities into freeing his brother, at little risk to Xavier himself.

If Xavier Sanders is charged with the shooting and tried, he might well be acquitted, the prosecutor said. He could tell a jury that his confessions were a ruse to free his brother. He could also note that all five eyewitnesses who testified at Sheldon Sanders’ trial said that Sheldon--not Xavier--was the gunman.

“We’re not going to get caught in that,” the prosecutor said.

For his part, Xavier Sanders said he knows authorities do not believe him. But the unemployed 27-year-old man, who has a criminal record of robbery, cocaine and weapons convictions, declared: “I wouldn’t lie about something like this here. I done come forward so many times, they should get the hint.”

The state Court of Appeal, meanwhile, recently adopted prosecutors’ reasoning in refusing to grant a new trial to Sheldon Sanders, who is 24 and serving a 17-year-to-life sentence for murder--his first offense.

But in doing so, the court raised the ire of one judge, Earl Johnson, who wrote a scathing dissent, arguing that the court was relying on speculation to “save the present conviction” and, in the process, giving justice a back seat to expediency.

That was just part of one of the sharpest and most bitter exchanges between state Court of Appeal justices in memory--with each side accusing the other of intellectual dishonesty and the majority going so far as to liken Johnson’s analysis to that of “a first-year law school student.”

Johnson, who is known for his liberal stances on social issues, is also known as among the brightest justices on the court.

“This is not one of the typical cases where the issue on appeal is whether a guilty man should be let free because he was convicted through illegally obtained evidence,” he wrote. “Nor is it a case where the error asserted on appeal would reduce the prosecution’s evidence of appellant’s guilt to something less than guilt beyond a reasonable doubt. No, this is one of those rare cases where . . . the . . . error . . . goes to the core issue of the defendant’s innocence.”

And that may be another part of the problem. Claims of innocence sometimes throw appeals courts for a loop. “They don’t know how to deal with innocence,” said Abramson. In fact, state law does not allow a convict to appeal simply on the grounds that he is innocent. Guilt or innocence is the domain of the trial judge and jury.

Appeals courts are set up to decide broad policy questions and to regulate the conduct of the lower trial courts and of police and prosecutors by insisting that convictions be arrived at fairly.

They reverse convictions only on questions of law, as opposed to fact, and only when they have to--which usually means that the convict’s rights were violated in a particularly flagrant way.

“They really are not sitting as the 13th juror,” said Patricia Nelson of the California Appellate Project, which advises appeals lawyers representing indigent criminal defendants. “In cases of factual innocence, the only strong case you can come in with is where the prosecutor has hidden evidence. But where the defense has ineptly or maliciously failed to put on the very same evidence, then you’re in deep trouble.”

This reflects the reluctance of the Court of Appeal to reverse convictions because defense lawyers were incompetent.

“It’s very hard to convince a reviewing court that . . . counsel dropped the ball,” said Uelmen, the Santa Clara Law School dean, “and the reality . . . is that there’s a hell of a lot of incompetence out there, and the court should look at those claims seriously.”

In the Sanders case, for instance, the jury that convicted Sheldon never learned that Xavier had confessed.

That was because Sheldon Sanders’ lawyer literally told Xavier to get lost.

Justice Johnson in his dissent said this was a crucial omission--and indicative of incompetence.

“Can anyone seriously question,” he wrote, “the devastating impact of a witness testifying, ‘The defendant didn’t do it. I did it?’ ”

However, the two-justice majority guessed that Sheldon Sanders’ attorney had a good reason for not introducing testimony about Xavier’s confessions--making the question of the confessions’ potential impact on jurors legally moot.

The attorney, Philip Jefferson, was not available for questioning because he had left the state after being disbarred for a 10-year-pattern of misconduct in the handling of clients’ cases.

But the majority surmised, in a decision written by Justice Fred Woods, that Jefferson might have known that Xavier Sanders’ confessions were false and decided not to present them because it would have been unethical for a lawyer to knowingly present lies in court.

Justice Woods, in an opinion in which Justice Mildred Lillie concurred, accused Johnson of making an argument characterized by “transparent triviality . . . more befitting a first-year law school student aflush with issue-spotting passion” than a justice of the Court of Appeal.

Woods said it was evident that members of Sheldon Sanders’ family were willing to perjure themselves. He noted that some family members had testified that Sheldon was home at the time of the killing.

But, according to Xavier Sanders’ confessions, Sheldon had accompanied him to a spot near the scene of the crime.

Clearly, someone in the Sanders family had lied, and Woods wrote that he thought it was Xavier. He said Xavier’s confessions had the “damning odor of recently manufactured evidence.”

Johnson termed this pure speculation. “Unless a higher court intervenes,” he wrote, “this (decision) will be enough to condemn the brother who proclaims his innocence--and could well be innocent--to spend his best years in prison while the brother who admits the crime remains free.”

Experts say it is unlikely that the state Supreme Court will get involved. That court, the state’s highest, must hear death penalty appeals and lawyer disciplinary cases. Other than that, it chooses the cases it wants to hear with an eye toward making broad public policy.

“I don’t think there is a chance you can get a case like this heard by the Supreme Court anymore,” Uelmen said. “The Court of Appeal (the state’s intermediate appellate court, which must hear all appeals from convicted felons) is the end of the line when you’re talking about whether justice was done in a particular case. The California Supreme Court . . . is interested in cases that will have a major impact on the law. And cases like this don’t fall into that category. There’s no room on the docket for a case like this.”

In a landmark 1982 study of how a California Court of Appeal works, Thomas Davies, of the American Bar Foundation, remarked on the essentially conservative nature of the appellate process.

“The data . . . tend to refute any notion that the Court of Appeal is eager or even willing to reverse serious convictions on the basis of procedural technicalities,” Davies wrote. “The more appropriate question is whether the very restrained review of criminal proceedings . . . is adequate for the enforcement of due process standards in the trial courts.”

Part of the justices’ concern, researchers say, is not to make unnecessary and demoralizing work for trial judges by sending back too many cases for them to try again. And part of the concern is not to let guilty people go free.

Most criminal cases on appeal involve serious, even horrendous crimes where there is little doubt about a convict’s guilt. In California, 17 of every 18 appealed convictions are affirmed.

Justices have told academic researchers that they find procedural errors in virtually all trials, but tend to call them harmless.

Justices also avoid second-guessing trial courts as long as they can find any substantial evidence--contradicted or not--to support a trial court’s decision.

Some justices have spoken frankly and harshly in off-the-record talks with researchers by comparing their processing of these cases to “getting rid of the garbage” or dealing with “these rotten little cases.”

But a problem can arise when an innocent man appeals.

While no one knows how many people are wrongly convicted each year, C. Ronald Huff, director of the Criminal Justice Research Center at Ohio State University, has collected estimates from law enforcement professionals, most of whom believe that wrongful convictions occur less than 1% of the time.

If the true error rate was only one-half of 1% in serious felony cases, that would still mean 6,000 wrongful convictions nationwide every year, Huff said.

Huff also collected accounts of 500 cases in which the government ultimately admitted it convicted the wrong man. Appeals courts had affirmed convictions in most of them.

To account for this, Huff coined “the ratification of error principle,” which holds that the more people in authority who look at a case, the greater the chances are that they will not look at it carefully, because they are inclined to trust the judgments of those who have looked at it before.

Although the Sanders case is tangled, what is known is that 18-year-old Norman Gregory became a victim of senseless violence. He was shot to death at the Gregory family’s Compton home.

What is also known is that Sheldon Sanders had reason to be angry with the Gregorys. One of Sheldon’s older brothers was married to Norman Gregory’s sister, and she had reportedly accused Sheldon of hitting her.

When Sheldon showed up at the Gregory household, Norman and another of the Gregory brothers punched him and threw a rock at his car windshield, cracking it. Sheldon Sanders sped away, reportedly saying he would be back to get revenge.

A short time later, a car containing three men pulled up at the Gregory house. Only one of them got out.

He had a rifle and fired a shot at one of the Gregory family’s cars, breaking its window.

Then, as the Gregory brothers and some friends gathered at the front door, the gunman walked toward the house.

Those at the door testified that the gunman taunted them before firing a shot that penetrated the door. It struck and killed Norman Gregory.

Then the gunman got back in his car and fled.

In his confessions, Xavier Sanders claimed that he was the gunman but that he taunted no one.

In a distinction that could mean the difference between murder and the lesser crime of manslaughter, Xavier Sanders claimed he didn’t know the Gregory brothers were standing at the door and didn’t realize his shot had hit anyone until later.

He said Sheldon Sanders and another of his brothers were with him, but stayed in the car and had no idea he was going to shoot.

Once he learned that Norman Gregory had been shot, he said he confessed to his mother. She confirms this. He said he then retained a lawyer and confessed to him too. The lawyer also confirms this.

But when he was arrested as a suspect in the shooting, he refused to talk to police, and the police let him go. Only Sheldon Sanders was charged.

Eyewitness accounts were conflicting. Some initially identified Xavier Sanders as the gunman, according to police reports, but all later agreed the gunman was the slighter-built Sheldon Sanders.

At Sheldon’s first trial, which resulted in a hung jury, Xavier Sanders was summoned as a witness by the defense, but invoked his Fifth Amendment right not to incriminate himself on the advice of a court-appointed lawyer.

When the district attorney’s office sought to try Sheldon Sanders a second time, the family switched lawyers, hiring Jefferson.

“We told Mr. Jefferson that Xavier was the one who fired the rifle,” said the brothers’ mother, Regina Sanders. “We just wanted justice to be served right because Sheldon did not shoot that boy.”

But Jefferson did not want to talk with Xavier, Mrs. Sanders said.

At one point, she said, she brought Xavier to the courtroom during the second trial and told Jefferson, “Xavier is here to testify.”

But she said Jefferson told Xavier to go away.

“I left,” Xavier recalled.

“My understanding was that . . . I guess he had a better chance of doing whatever he was going to do without exposing me. He could have been under the impression that I was lying, I don’t know, because I never talked to him. He could have been doing it for my own good.”

Whatever Jefferson was doing, it didn’t work.

After Sheldon Sanders was convicted, his family hired another attorney, Abramson, who obtained a sworn written confession from Xavier, which was filed in court. She also interested attorney Rowan Klein in the case.

Klein and Sheldon Sanders’ appellate attorney, R. Charles Johnson, then persuaded the Court of Appeal to ask the judge who had presided at the second trial to hold a hearing.

Although Xavier Sanders confessed to Klein on tape and agreed to testify, he got cold feet on the witness stand. While he made a series of admissions, saying that he was the only one who had gotten out of the car and was the only one with a gun, he stopped short of saying he fired it.

Instead, he followed the advice of another court-appointed lawyer and invoked the Fifth Amendment on that question.

“I don’t know why I didn’t say it,” he told The Times. “I was ready to say it. But the whole thing changed. The judge got an attorney for me. They got that attorney to speak for me.”