Wednesday, August 6, 2008

Ineffective Counsel (13 years after conviction): Moore v. Czerniak, 534 F.3d 1128 (9th Cir. 2008)

Moore v. Czerniak, [Warden] 534 F.3d 1128 (9th Cir. 2008). See, Blog entry, August 1, 2009 Note: this opinion was withdrawn and published as 574 F.3d 1092 (9th Cir. 2008). Randy Moore and others beat Kenneth Rogers until he bled, stripped him, bound him in duct tape, placed sin in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint. While marching Rogers through the woods, Moore shot Rogers-accidentally he said-through the temple. Moore confessed the details to his older brother Raymond and his girlfriend. He then talked to police, [not while in custody], corroborating the evidence the police had already obtained. These facts, taken verbatim from the dissenting judges opinion in this case, are undisputed and provided by Moore himself. Before the prosecution sought his indictment, defense counsel negotiated a plea bargain with the prosecutor in which Moore obtained the lowest sentence available under Oregon law for felony murder. But according to the Ninth Circuit panel majority (2-1), counsel should have made a motion to suppress Moores confession. Had counsel done that, said the majority panel, he would be in a better position to negotiate a plea other than the harsh sentence he recieved. (The appropriate sentence for Moore, based on kidnapping and murder, was the death penalty.) The majority focuses on failure of counsel to file a motion to suppress Moores confession on the grounds the police violated Miranda and promised him leniency. Neither the Oregon courts reviewing the conviction, and holding an evidentiary hearing, nor the U.S. District Court reading Moores petition for habeas corpus thought so; State v. Moore, 951 P.2d 204 (1997). Both these courts noted that prior to his confession to police, Moore had confessed to his brother and girlfriend. In an evidentiary hearing in state court, the brother repeated the essence of the confession and there is no indication he and the girlfriend would not testify for the prosecution. Nevertheless, for purposes of the appeal, the majority and the dissent assumed the confession to police inadmissible; 951 P.2d 204 (2001). The dissenting judge contends the majority again display a total misunderstanding of criminal law and procedure: The majority . . . reflect an almost willful ignorance of the record evidence and the realities of criminal defense representation. In the first place, the prosecution had not indicted Moore, enabling him to plead without the necessity of an Information that would have alleged, burglary, kidnapping, and felony murder. Secondly, a co-defendant refused to accept any plea bargain, went to trial, and the jury found him guilty; third, if counsel wanted to suppress the confession to police by motion, the prosecution would have resisted and obviously withdrawn the plea agreement; fourth, a trial for felony murder and kidnapping is subject to the death penalty. Other than the multiple confessions, the evidence is overwhelming. A co-defendant led police to the location of the weapon used by Moore; police seized the car used in the kidnapping containing duct tape concealing the license plates; several other witness saw Moore leave a house with Rogers and other co defendants. Lastly, the defense attorney in his affidavit explained all the options available to the defendant prior to entering the plea. The legal issue is applicability of the seminal Supreme Court case in Strickland v. Washington, 466 U.S 668 (1984) holding a defendant is entitled to effective counsel, not just a sham representation. In Moore, counsel presented an affidavit at a post conviction hearing outlining his representation. The dissent notes counsel is an experienced criminal defense lawyer and does not limit his remarks to Moores confession. Counsel explains in detail that the two confessions of Moores brother and his girl friend adequately supported the prosecution. Brushing aside the Antiterrorism & Effective Death Penalty Act (28 U.S.C. 2254) requiring deference to state court decisions, the majority faults counsel for not moving to suppress the confession, citing a Supreme Court case acknowledging the importance and devastating evidence of a confession; Arizona v. Fulminante, 499 U.S. 279 (1991). An obvious truism, except Moore never cited the case in his brief on appeal, and in any event the confession in Fulminante concerned a post conviction confession after trial, not prior to a plea agreement. The majority ignores the leading case on ineffective counsel when a plea is taken and the Supreme Court has reminded the Ninth Circuit on more than one occasion, particularly when reviewing a state court conviction on habeas corpus, that second guessing and ruminating about alternatives available to counsel is forbidden to an appellate court; Hill v. Lockhart, 474 U.S. 52 (1985). Here is the Supreme Court test, ignored by the majority, to set aside a plea bargain on grounds of ineffective counsel: . . . the defendant must show that there is a reasonable possibility that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial (italics in original); Hill, 474 U.S. @ 59. There is no evidence Moore wanted to go to trial in any state or federal record. As the dissent points out, now a lawyer representing a defendant must file any motion possible before entering a plea. The prosecution is unlikely to regard this tactic as an inducement to reduce a plea. In Moore, assuming the prosecution can retry the case after thirteen years, it will probably seek the death penalty. Deservedly so. The murder occurred in 1995, affirmed on appeal by the Oregon courts, and Moores petition for habeas corpus denied in a U.S. District Court. On appeal of that decision to the Ninth Circuit, the court heard argument in 2005 and filed its decision in 2008. Thirteen years between conviction and decision. A decision skewered by the dissent and a clear candidate for a rehearing by the full court. As of December, 2008 the Oregon Attorney General has taken no action.

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