Academic

A Reinhardtian victory

By Tung Yin

In Premo v. Moore (2011), the Supreme Court, as it often does, reversed a Ninth Circuit grant of habeas petition from a state prisoner.  Moore had pleaded no contest to felony-murder under Oregon law after he and co-conspirators had kidnapped the victim, during the course of which Moore claimed that his gun went off accidentally and fatally shot the victim in the head.  In his habeas petition, Moore argued that he had received ineffective assistance of counsel because his lawyer had failed to move to suppress his confession to the police and that he had therefore been induced to plead guilty erroneously.

The primary precedent in this area is Hill v. Lockhart (1985), in which the Court explained that this burden means:

[T]he defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

* * *

For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

In Moore's case, the problem with demonstrating that the predicted trial result would have changed had his confession been suppressed is that he had confessed about the killing to two other people -- a fact that every court until the Ninth Circuit found critical.

In an opinion by Judge Reinhardt, the Ninth Circuit reversed and ordered relief granted to Moore.  That's not necessarily an absurd result.  The suppression motion probably should have been granted, and a confession reported by the police might be accorded more weight than confessions to other people who might have some shady histories.  However, Judge Reinhardt went far beyond such a restrained analysis and invoked a "harmless error" case that was decided on direct appeal following a trial (and hence a much different posture than a habeas case with a guilty plea) to create a seeming new rule in evaluating the effectiveness of counsel.

The extreme distortion of law wrought by the Ninth Circuit's opinion is best demonstrated by the fact that it was reversed by an 8-0 vote (with Justice Kagan recusing herself).  There were 7 votes for Justice Kennedy's majority opinion, which was a judicial smackdown of the Ninth Circuit, with such descriptions of Judge Reinhardt's opinion as "wrong," "doubly wrong," "improper [transplantation of legal doctrine]," "no sense in which the state court's finding could be contrary to [precedent]," and "[h]indsight and second guesses are also inappropriate."

Did it have to be such a bad smackdown?  Justice Ginsburg's concurrence was much more mild:

To prevail  under the  prejudice requirement of  Strickland v. Washington, 466 U. S. 668, 694 (1984), a petitioner for federal habeas corpus relief must demonstrate ?areasonable  probability that, but  for counsel?s errors, he would not have pleaded guilty and would have insisted ongoing to trial,? Hill  v.  Lockhart, 474 U. S. 52, 59 (1985). As Moore?s counsel confirmed at oral argument, see Tr. of Oral Arg. 32, Moore never declared that, better informed,he would have resisted the plea bargain and opted fortrial.  For that reason, I concur in the Court?s judgment.

One has to wonder how much the extra admonishment resulted from Judge Reinhardt's excesses.  True, this was going to be a difficult case for Moore to prevail in, given the Hill requirement of showing that he would have gone to trial and been likely to win there.  Still, a more moderate opinion in his favor might not have triggered the Supreme Court's response, which forecloses a number of issues from being favorably decided in future cases with "better" facts.

Who did Judge Reinhardt help?  Not Moore, who now goes back to his 25 year sentence.  Not future criminal defendants who plead guilty, who, even if they have better arguments, can't raise the same ones here, since those have been decided in favor of the state.

Full post as published by The Yin Blog on January 20, 2011 (boomark / email).