Friday, July 31, 2009

Ineffective Counsel: Rehearing en banc Denied: Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009)

Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009) Previously published at 534 F.3d 1128 (9th Cir. 2008) and withdrawn. This case has been extensively summarized in the Blog on August 6, 2008. On July 28, 2009 the 2-1 majority Ninth Circuit panel denied a rehearing and the court denied a rehearing en banc. The majority rewrote its opinion, as did the dissenting judge, but the rhetorical battle over this decision consumed an endless number of pages by the dissenters and a rebuttal by the author of the majority opinion. The majority opinion is replete with factual errors, reweighs the evidence and reaches a legal decision that can only be described as incoherent. The horrendous facts warrant the death penalty (or life without parole) in a case now decades old. The new rule for counsel in criminal cases is to make every motion possible, regardless of the evidence and the merits of the prosecution, in order to avoid a ruling of "ineffective counsel." The court majority completely lacks an understanding of criminal law and practice. The prosecutor offered the defendant a favorable plea to avoid the death penalty for a first degree murder conviction. Undoubtedly the proposed disposition took into consideration the failure of the police to properly warn the defendant of his Miranda rights but the prosecution possessed a confession from two lay witnesses in addition to other evidence. According to the majority, defense counsel should have made a motion to suppress the confession to the police. The offer from the prosecutor to defense counsel was probably this: if you make a motion to suppress, the plea bargain is "off the table" and we go to trial and seek the death penalty.The defendant accepted the offer and pled guilty, knowingly and voluntarily, based on the evidence. The Ninth Circuit, having granted the habeas corpus petition denied by the U.S. District Court judge (and the conviction previously affirmed by the Oregon Supreme Court), enables Moore to go to trial. He can now expect the prosecution to seek the death penalty and there will be no more plea bargaining. This case is a prime example of injustice to the citizenry of Oregon. Cert to the Supreme Court should be automatic in the face of Supreme Court precedent to the contrary; Knowles v. Mirzayance, 129 S.Ct. 420 ( 2009); Carey v. Musladin, 127 S.Ct. 649(2006).

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