Tuesday, June 12, 2007

Fry v. Pliler - A case study

I meant to comment on Fry v. Pliler, but so many people beat me to it that I'm going to try something different. I'm going to use yesterday's decision denying habeas relief out of the Ninth Circuit, Murdoch v. Castro, 05-55665, as an illustration of why Justice Stevens is correct in implying that there is no practical difference between the Brecht and Chapman standards of measuring Constitutional error, when such error is found.

Murdoch's quest for habeas relief has an interesting procedural posture. Charles Murdoch was convicted by jury of first degree murder, with a robbery special circumstance, and sentenced to life without parole. The main witness against Murdoch was Dinardo, who had already been tried and convicted of the same crime and sentenced to 25 to life. Dinardo testified under the promise of a reduced sentence. While Murdoch had the opportunity to cross-examine Dinardo, the following facts raised a question as to the whether it was an effective opportunity:

During Murdoch’s trial, Murdoch’s attorney, Dinardo’s attorney, the prosecutor,and the presiding judge discussed a letter addressed to Dinardo’s former counsel. The letter was first brought to the court’s attention by the prosecutor, who indicated that in her interviews of Dinardo, he told her of the existence of a letter in which he, Dinardo, stated that he was coerced by the police into implicating Murdoch in the crime. Dinardo’s new counsel asserted the attorney-client privilege and work-product doctrine as grounds for refusing to disclose the letter. The court concluded that Dinardo’s letter to his former counsel was protected by the attorney-client privilege and thus could not be used, on cross-examination, to impeach Dinardo.

After Murdoch's conviction and exhaustion of direct appeals, he petitioned for a writ of habeas corpus in the district court, which was denied. The Ninth circuit, in Murdoch I, 365 F.3d 699 (9th Cir. 2004) vacated and remanded the denial of habeas. The court reasoned that, depending on the contents of the letter, Murdoch's inability to use the letter to impeach Dinardo's testimony may have violated the Confrontation Clause. Therefore, the court remanded to the district court to conduct an in camera inspection of the letter and determine whether a violation occurred. The district court, while finding that the state court's failure to balance the state privilege against Murdoch's Sixth Amendment rights satisfied 2254(d)(1), any error was harmless under the Brecht standard.

A new panel of the Ninth Circuit affirmed. Judge Tashima, writing for the majority:

Here, Murdoch’s counsel was able, by effective cross examination, to raise doubts as to Dinardo’s biases and motivations. Dinardo testified that his sentence was reduced to “about five years” in exchange for his testimony. He testified about his previous theft convictions, both before and after the robbery in question. He testified to prior inconsistent statements: that at the time of his arrest he initially denied any involvement in the crime; that he “would have said whatever it took to get out of custody” including “point[ing] out someone else” involved in the crime; that he pleaded “not guilty” at his own trial and “avoid[ed] responsibility” for the crime; and that his story had changed from earlier claims that the police had coerced his confession. Dinardo equivocated on the stand when confronted with prior inconsistent testimony: “I testified to that? . . . I — I can’t remember testifying like that. If I could see it, I could probably remember.” In sum, Dinardo’s cross-examinations were effective.

The opinion went on to conclude that while the letter may have made the cross-examination marginally more effective, its absence did not rise to a 6th Amendment violation. The dissent had a different view of what would have happened, but for the exclusion of the letter:

What a boon to Murdoch. After showing Dinardo the letter to refresh his recollection, Murdoch’s counsel could have undermined any reliance on his testimony that Murdoch participated in the crime. The majority depicts Dinardo’s letter as “run[ning] contrary to” his and others’ testimony at Murdoch’s trial. I agree, but the truth of Dinardo’s statements in the letter is beside the point. Murdoch’s counsel was able on cross-examination to show only that Dinardo initially denied his involvement in the crime, made some inconsistent statement, and, because he hoped to gain a reduction of his sentence, had an incentive to provide testimony favorable to the state regardless of its truthfulness. The majority concludes this was sufficient to undermine the jury’s confidence in Dinardo but, as this court in Murdoch I suggested, general impeachment is inferior to impeachment based on a prior inconsistent statement. See Murdoch I, 365 F.3d at 705. The letter and its disavowal of Murdoch’s involvement in the crime would have been the pièce de résistance, leading inextricably to the conclusion that Dinardo was not only generally unreliable but also untrustworthy regarding the one element of his testimony that the jury (as its verdict demonstrates) must have believed. The concluding question on cross-examination of Dinardo seems obvious: “Were you lying then or are you lying now?” What juror would give credence to any statement of Dinardo? The prosecution’s case relying on this lying witness would collapse.

Because of the dispute about whether a constitutional violation occurred, neither opinion discussed the harmlessness of the error under Brecht (or Chapman), and that’s my point. If there is a state court decision that is so wrong that it is either contrary to clearly established Federal law or an objectively unreasonable application of clearly established Federal law, the distinction between the Brecht and Chapman standards won’t make a difference. From the cases that I have read, the “harmless beyond a reasonable doubt” standard in Chapman is used when either the reviewing court does not want to talk about the error, or there is a nominal violation of clearly established Federal law that is viewed as irrelevant. If the court views an error as serious enough that it was not harmless beyond a reasonable doubt, it seems obvious to me that the same court would view the error as having a “substantial and injurious effect” under Brecht. Does anyone doubt that the dissent in Murdoch II would have viewed the error as having a substantial and injurious effect?

Fry v. Pliler is just another wall, another way for a court reviewing the grant of habeas relief to say, perhaps there was an error, but because Brecht is SUCH a high standard, we have to reverse the decision below. But I find it hard to believe that the reviewing court making that decision would not reach the exact same result under Chapman.