Murdoch v. Castro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRANKLIN MURDOCH, JR., 

Petitioner-Appellant, No. 05-55665

v. D.C. No.

ROY CASTRO, Warden; EDMUND G.  CV 99-06900

BROWN, JR.,* Attorney General of RSWL

the State of California, OPINION

Respondents-Appellees.



Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted

March 24, 2009—San Francisco, California

Filed June 21, 2010

Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,

A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman,

M. Margaret McKeown, Kim McLane Wardlaw,

William A. Fletcher, Consuelo M. Callahan, Sandra S. Ikuta,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Tashima;

Concurrence by Judge Silverman;

Dissent by Chief Judge Kozinski;

Dissent by Judge Thomas

*Edmund G. Brown, Jr., is substituted for his predecessor, Bill Lockyer,

as Attorney General of the State of California. Fed.R.App.P. 43(c)(2).

9021

9024 MURDOCH v. CASTRO

COUNSEL

Seymour I. Amster, Van Nuys, California, for the petitioner-

appellant.

Rama R. Maline, Deputy Attorney General, Los Angeles, Cal-

ifornia, for the respondents-appellees.

MURDOCH v. CASTRO 9025

OPINION

TASHIMA, Circuit Judge:

Charles Murdoch was convicted of murder in California

state court. Before trial, the prosecutor informed the court that

a prosecution witness and participant in the crime had written

a letter to his attorney claiming that Murdoch was not

involved in the crime and that the witness had been coerced

into implicating Murdoch. The state court ruled that Murdoch

could not have access to the letter because it was protected

under California’s attorney-client privilege. In order to deter-

mine whether Murdoch is entitled to habeas relief, we must

decide whether, under “clearly established Federal law, as

determined by the Supreme Court of the United States,” 28

U.S.C. § 2254(d)(1), the Confrontation Clause of the Sixth

Amendment of the United States Constitution1 compelled the

release of the letter to Murdoch in spite of the attorney-client

privilege.

I. BACKGROUND2

On May 17, 1983, four men robbed the Horseshoe Bar in

Long Beach, California. During the course of the robbery, one

bystander was shot and killed; another was stabbed and

severely wounded. The men recovered approximately $200

from the cash register and left behind a fingerprint. The crime

went unsolved until 11 years later, when advances in finger-

print technology enabled police to identify Dino Dinardo as

one of the perpetrators.

Officers arrested Dinardo on June 30, 1994, in Berkeley,

California. When first questioned, Dinardo denied any

1

“In all criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him.” U.S. CONST. amend. VI.

2

The factual and procedural summary is taken largely from Murdoch v.

Castro, 489 F.3d 1063, 1064-67 (9th Cir. 2007) (“Murdoch II”).

9026 MURDOCH v. CASTRO

involvement in the crime, but later recanted, admitting his

involvement in the robbery, and identifying Murdoch as one

of his accomplices. Both Dinardo and Murdoch were charged

with murder accompanied by special circumstances.

Dinardo was tried first. At a suppression hearing that pre-

ceded his trial, Dinardo testified that his confession to the

Long Beach police had been coerced, and that he had given

the confession in exchange for a promise that he would be

released to see his wife and daughter. Dinardo was convicted

and was sentenced to 25 years’ to life imprisonment. At sen-

tencing, the judge said to Dinardo:

I would like to do something different, Mr.

Dinardo. You’ve probably been told it’s a set sen-

tence. I have to give it. The only thing I can say is

I have 90 days to change the sentence if anything

changes in the way of your mind or the District

Attorney’s mind insofar as trying to resolve this with

something less than the set sentence.

Frankly, from the standpoint of the other trial,

unless the District Attorney has something more, I

just wonder without your assistance where they’re

going; but maybe sometimes cases develop at the

last minute. But, to my knowledge, I don’t know of

any other evidence. They have a very difficult case

without your assistance.

But that’s actually between attorneys, and it’s not

the judge’s province.

I was hoping there would be a resolution so that

I could sentence you to something less, which I

would prefer to do from everything about this case,

especially the length of time and all the years that

you lived what appears to be a law-abiding life

before you got arrested.

MURDOCH v. CASTRO 9027

Dinardo subsequently did testify and, in return, received a

reduction of his conviction to voluntary manslaughter and a

reduced sentence of 12 years’ imprisonment.3

Dinardo was a key witness at Murdoch’s trial. He testified

that, in 1983, Murdoch had approached him “to do a job” and

that the two of them, together with two other men, robbed the

Horseshoe Bar. According to Dinardo, when Murdoch entered

3

The dissent states that “[f]or a judge to goad someone he’s just given

a life sentence into helping the prosecution by promising to give him his

life back, but only if he helps finger the defendant, is judicial extortion.”

Diss. op. at 9046. What the Chief Judge harshly labels as “judicial extor-

tion” has long been a part of our criminal justice system. See, e.g.,

U.S.S.G. § 5K1.1 (providing for a downward sentencing departure for

substantial assistance in the prosecution of another person); 18 U.S.C.

§ 3553(f)(5) (providing that a “safety harbor” sentence below a statutory

minimum is available only if, inter alia, the sentencing court finds that the

defendant has fully cooperated with the Government). Perhaps the most

famous example of such judicial “goading” or “extortion” is that of Chief

Judge Sirica in the Watergate trial. There, as reported by Time magazine

in its 1973 man-of-the-year story, Judge Sirica “kept the pressure on the

other convicted conspirators to talk too by giving them harsh provisional

sentences ranging up to 40 years. . . . He promised to review the sentences

later and said that the final sentencing ‘would depend on your full cooper-

ation with the grand jury and the Senate Select Committee.’ ” Available

at http://www.time.com/subscriber/personoftheyear/archive/stories/

973.html (last visited May 15, 2010).

The dissent characterizes Judge Sirica’s conduct of the Watergate trial

as “unconscionable” and “a blemish on the reputation of the federal courts

. . . .” Diss op. at 9046 n.*. The D.C. Circuit, sitting en banc, however,

did not express the same, harsh view. It not only affirmed Judge Sirica’s

conduct, but lauded it in the face of charges that he conducted the trial and

sentencing in an inquisitorial manner. See United States v. McCord, 509

F.2d 334, 347 (D.C. Cir. 1974) (en banc) (“The judge, like the prosecutor

in this respect, is not a passive by-stander in the arena of justice, a specta-

tor at a ‘sporting event,’ rather he or she has the most pressing affirmative

responsibility to see that justice is done in every case.” (footnotes omit-

ted)), cert. denied, 421 U.S. 930 (1975); see also United States v. Liddy,

509 F.2d 428, 442 (D.C. Cir. 1974) (“Judge Sirica’s palpable search for

truth in such a trial was not only permissible, it was in the highest tradition

of his office as a federal judge.”).

9028 MURDOCH v. CASTRO

the bar, Murdoch carried a .22 caliber rifle and announced

loudly, “Don’t nobody move. This is a stick-up.” Dinardo

took this as his cue to empty the cash register. He fumbled

with the buttons on the register, heard a gunshot, emptied the

register, and ran out the back door, joining the other two men

in the getaway car, with Murdoch joining them about a min-

ute later. He recalled seeing Murdoch in possession of the

rifle both in the bar and in the car. Dinardo testified that the

first time he learned that someone had been shot in the rob-

bery was the day of his arrest, 11 years after the crime.

During Murdoch’s trial, Murdoch’s attorney, Dinardo’s

attorney, the prosecutor, and the presiding judge discussed a

letter from Dinardo addressed to his then 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 let-

ter to Dinardo’s former counsel, who was still representing

Dinardo when the letter was written, was protected by the

attorney-client privilege and thus could not be used, on cross-

examination, to impeach Dinardo.

Although Dinardo was not cross-examined about the letter,

Murdoch’s counsel succeeded in eliciting testimony that chal-

lenged Dinardo’s credibility as a witness. Dinardo testified

that he had been convicted of the same murder for which

Murdoch was now being tried and that by testifying in Mur-

doch’s trial, he would “get out in about five years” rather than

21 or more years. He admitted that when he was initially

questioned by the police, he had lied and denied that he had

ever been inside the Horseshoe Bar. He admitted that he

would have done “whatever it took” to get out of custody and

be reunited with his daughter. He also testified to convictions

for grand theft in 1982 and petty theft in 1984. On re-direct

MURDOCH v. CASTRO 9029

examination by the prosecutor, Dinardo testified that during

the police questioning, he named a “Charles or Chuck” as

someone else involved in the crime, but he could not remem-

ber the last name. He was shown photographs at the end of

the interview, and he identified Murdoch as one of his accom-

plices. On re-cross, he stated that he had testified in his own

trial that his confession had been coerced. He also admitted

that, had the fingerprints not identified him as one of the rob-

bers, he would have continued to lie to the police about his

involvement.

In addition to Dinardo, other witnesses from the Horeshoe

Bar testified and provided in-court identification of Murdoch.

The bartender, Dyanne Spence, described looking into Mur-

doch’s eyes down the barrel of a rifle pointed at her face.

“He’s been scaring me for years,” she said. She also testified

that she had identified Murdoch at a live lineup at the county

jail in 1994 and that she was sure “beyond a shadow of a

doubt” that Murdoch had committed the crime.

Murdoch was convicted of first-degree murder with a

robbery-murder special circumstance, and sentenced to life

imprisonment without parole. The California Court of Appeal

affirmed the conviction, and denied Murdoch’s petition for a

writ of habeas corpus. The California Supreme Court denied

Murdoch’s petition for review.

Murdoch then filed a federal petition for a writ of habeas

corpus, which the district court dismissed. On Murdoch’s first

appeal, we vacated the order denying Murdoch’s habeas peti-

tion and remanded the case to the district court stating:

Today, we address a situation where a substantial

showing has been made that, depending upon the

content of Dinardo’s letter, the Confrontation Clause

and attorney-client privilege are potentially at odds

—a set of facts the Supreme Court has not yet exam-

ined. Its precedents, however, clearly provide that

9030 MURDOCH v. CASTRO

evidentiary privileges or other state laws must yield

if necessary to ensure the level of cross-examination

demanded by the Sixth Amendment.

Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004)

(“Murdoch I“). We concluded that if the contents of Dinar-

do’s letter “are as generally described by the prosecutor and

as Murdoch believes,” then Murdoch “has arguably met his

burden” of showing that the jury might have received a signif-

icantly different impression of the witness’ credibility had

Murdoch been able to pursue his proposed line of cross-

examination. Id. at 705. General impeachment for bias impli-

cated Dinardo’s reliability to a lesser extent than actual state-

ments inconsistent with his testimony, such as those which the

letter purportedly contained. Id. Without knowing the con-

tents of the letter, however, we could not make a determina-

tion of whether Murdoch’s confrontation rights had been

violated. We accordingly remanded the case to the district

court with instructions that the court obtain the letter, inspect

it in camera, and determine whether the state court’s decision

to deny Murdoch access to the letter violated Murdoch’s Sixth

Amendment right of confrontation. Id. at 706.

On remand, the magistrate judge, in his report and recom-

mendation, began from the premise that “[e]ssentially, the

Ninth Circuit held that the attorney-client privilege might

have to yield in a particular case if the right of confrontation

would be violated by enforcing the privilege.” The report con-

cluded that, although the state courts had read the contents of

the letter, their decisions were “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,”

within the meaning of 28 U.S.C. § 2254(d)(1), in that they

failed to perform any balancing of Murdoch’s Sixth Amend-

ment rights against the privilege.

Nevertheless, the report found that there was no constitu-

tional violation because the letter’s intrinsic probative value

MURDOCH v. CASTRO 9031

was low, given that, of the four factual assertions in the letter,

“trial testimony rebutted the first three, and half of the

fourth.” The magistrate judge summarized the contents of the

letter as asserting the following facts: (1) After Dinardo’s

arrest in Berkeley, Long Beach Police Detective Pavek

coerced a statement from Dinardo by promising not to charge

Dinardo in exchange for Dinardo’s statement; (2) In his state-

ment, Dinardo was forced to identify petitioner Murdoch as

a participant in the crime; (3) Dinardo does not actually know

Murdoch, although Dinardo is acquainted with Murdoch’s

brother; and (4) Murdoch and Dinardo did not commit any

crime.

Because the factual assertions in the letter had been “con-

tradicted by trial testimony” or “were demonstrably false in

the light of other testimony,” the magistrate judge found that

the “intrinsic probative value of the letter was and is low.”

Thus, the exclusion of the letter from evidence did not sub-

stantially diminish Murdoch’s right to effective cross-

examination. The magistrate judge also concluded that the

decision to exclude the letter was subject to harmless error

analysis, and, further concluded, under the Brecht v.

Abrahamson standard, 507 U.S. 619, 637 (1993), that there

was no “grave doubt” as to whether the jury would have

reached a different result had the letter been admitted. While

acknowledging that “Dinardo’s testimony was crucial,” the

magistrate judge found that “Dinardo’s prior inconsistent

statement was inextricably linked with other statements which

either conflicted with other evidence or were demonstrably

false.” Therefore, he concluded that any error resulting from

the exclusion of the letter was harmless. The district court

adopted the magistrate judge’s findings and recommendation

and denied Murdoch’s habeas petition.

On Murdoch’s second appeal, a divided three-judge panel

affirmed the district court’s denial of habeas relief in Mur-

doch II, 489 F.3d 1063. The majority pointed out that it was

bound under the “law of the case” doctrine by the Murdoch

9032 MURDOCH v. CASTRO

I court’s holding that, “under the right set of facts, Supreme

Court precedent suggests the Sixth Amendment right to con-

frontation could support admission of the letter, even against

a valid claim of attorney-client privilege.” Id. at 1068.

Although the Murdoch I court had not explicitly held that it

was clearly established under Supreme Court law that the

Confrontation Clause might support the introduction of the

letter as evidence, the majority in Murdoch II interpreted this

as a necessary implication of Murdoch I that was binding on

the panel as the law of the case. Id. at 1068 & n.2. The panel

then held that Murdoch was able to cross-examine Dinardo

effectively in spite of not having access to the letter, and that

therefore the Sixth Amendment did not require that the letter

be released to him. Id. at 1069-70.

Judge Bright4 dissented from the panel’s decision. He

believed that access to the letter would have allowed Murdoch

to impeach Dinardo’s testimony much more effectively than

was possible without the letter, and that, on the basis of Mur-

doch I, habeas relief should have been granted. Id. at 1070-72

(Bright, J., dissenting).

We granted Murdoch’s petition for rehearing en banc.5

Murdoch v. Castro, 546 F.3d 1051 (9th Cir. 2008).

II. JURISDICTION AND STANDARD OF REVIEW

We review de novo the district court’s denial of a § 2254

habeas petition. Tilcock v. Budge, 538 F.3d 1138, 1143 (9th

Cir. 2008). Under the Antiterrorism and Effective Death Pen-

alty Act of 1996 (“AEDPA”), a habeas petition challenging a

state court conviction will not be granted unless the decision

4

The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation, was a member of the Mur-

doch II panel.

5

The en banc court ordered supplemental briefing on the question of

whether the court should reconsider its decision in Murdoch I.

MURDOCH v. CASTRO 9033

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). Here,

AEDPA applies because the state court denied Murdoch’s

claim “on the merits,” rather than on a procedural or other

ground. 28 U.S.C. § 2254(d)(1); see Lambert v. Blodgett, 393

F.3d 943, 969 (9th Cir. 2004); Reynoso v. Giurbino, 462 F.3d

1099, 1109 (9th Cir. 2006) (assuming, unless it is otherwise

“clear,” that a state court has decided all the issues presented);

Hunter v. Aispuro, 982 F.2d 344, 346-48 (9th Cir. 1992) (pre-

suming denial of habeas relief is on the merits, not procedural

grounds, unless the decision supports the opposite conclu-

sion). Under § 2254(d), we cannot grant the writ unless the

state court’s decision (denying Murdoch’s claim) is objec-

tively unreasonable. See Delgado v. Lewis, 223 F.3d 976, 982

(9th Cir. 2000); Pirtle v. Morgan, 313 F.3d 1160, 1165, 1169

(9th Cir. 2002).

III. DISCUSSION

[1] The Confrontation Clause of the Sixth Amendment

guarantees a defendant in a criminal case an opportunity for

effective cross-examination of the witnesses against him. Del-

aware v. Van Arsdall, 475 U.S. 673, 679 (1986). In Murdoch

I, we implicitly held that it was clearly established by the

Supreme Court that this right could, in some circumstances,

be violated by the failure to produce a document that was oth-

erwise protected by the attorney-client privilege. 365 F.3d at

705-06. The three-judge panel in Murdoch II was bound

under the “law of the case” doctrine by Murdoch I’s holding.

See Murdoch II, 489 F.3d at 1067-68. This restriction, how-

ever, does not apply to the en banc court. See Kyocera Corp.

v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 995

(9th Cir. 2003) (en banc). The question we must now con-

front, therefore, is whether Murdoch I was correct in holding

that it is clearly established by Supreme Court precedent that

the Sixth Amendment right to confrontation in some situa-

tions trumps the attorney-client privilege.

9034 MURDOCH v. CASTRO

A

The Supreme Court has restricted “clearly established Fed-

eral law” under § 2254(d)(1) to “ ‘the holdings, as opposed to

the dicta, of this Court’s decisions as of the time of the rele-

vant state-court decision.’ ” Carey v. Musladin, 549 U.S. 70,

74 (2006) (“Musladin II“) (quoting Williams v. Taylor, 529

U.S. 362, 412 (2000)). A state court’s decision is contrary to

clearly established law when it either “applies a rule that con-

tradicts the governing law set forth in [the Supreme Court’s]

cases” or “confronts a set of facts that are materially indistin-

guishable from a decision of this Court and nevertheless

arrives at a result different from our precedent.” Williams, 529

U.S. at 405-406. A state court unreasonably applies clearly

established law when it “identifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreason-

ably applies that principle to the facts of the prisoner’s case.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Wil-

liams, 529 U.S. at 413). To be an unreasonable application,

the state court decision “must be objectively unreasonable,”

not just incorrect or erroneous. Id. at 75-76. Habeas relief for

an unreasonable application of law can be “based on the

application of a governing legal principle to a set of facts dif-

ferent from those of the case in which the principle was

announced. Id. at 76.6 Habeas relief for an unreasonable appli-

6

The California Court of Appeal, which rendered the last reasoned state

court decision in this case, addressed Murdoch’s Confrontation Clause

argument only obliquely. It did not mention the Confrontation Clause in

its opinion, but it did discuss and quote from the section of Murdoch’s

brief in which he raised the issue. The court also quoted from People v.

Godlewski, 21 Cal. Rptr. 2d 796, 800 (Ct. App. 1993), a case that dealt

with the tension between the attorney-client privilege and the Confronta-

tion Clause. Whether the state court adequately responded to Murdoch’s

Confrontation Clause argument, however, is irrelevant. Even when there

is no reasoned state court opinion explaining the denial of a defendant’s

claim in any respect, we “must assume that the state court has decided all

the issues and ‘perform an independent review of the record to ascertain

whether the state court decision was objectively reasonable.’ ” Reynoso,

MURDOCH v. CASTRO 9035

cation of law can be “based on an application of a governing

legal principle to a set of facts different from those of the case

in which the principle was announced.” Id.; accord Panetti v.

Quarterman, 127 S. Ct. 2842, 2858 (2007), but only when the

principle “clearly extend[s]” to the new set of facts. Wright v.

Van Patten, 128 S. Ct. 743, 745 (2008) (per curiam).

A review of the Supreme Court’s recent case law on this

subject suggests that, when a state court may draw a princi-

pled distinction between the case before it and Supreme Court

caselaw, the law is not clearly established for the state-court

case. In Musladin II, 549 U.S. at 77, the Supreme Court

vacated a decision of this court, Musladin v. Lamarque, 427

F.3d 653, 661 (9th Cir. 2005) (“Musladin I”), in which this

court held that the state court unreasonably applied clearly

established federal law by allowing the victim’s family mem-

bers, in a murder trial, to wear buttons depicting the victim

while in the presence of the jury.

In support of our decision in Musladin I, we relied primar-

ily on two Supreme Court cases: Estelle v. Williams, 425 U.S.

501 (1976), and Holbrook v. Flynn, 475 U.S. 560 (1986). In

Williams, the Court noted that, when a defendant appears

before the jury in prison garb, “[t]he defendant’s clothing is

so likely to be a continuing influence throughout the trial that

461 F.3d at 1109 (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.

2005) (per curiam)) (internal quotation marks omitted). Thus we do not

review Murdoch’s claim de novo, as we would if the state court had

clearly indicated that it had not reached the merits of Murdoch’s claim.

See id.; Pirtle, 313 F.3d at 1167.

The dissent refuses to accept these established principles of AEDPA

review. Instead, it spends several pages discussing the state appellate

court’s duty under state law to “analyze[ ] . . . [each] contention” and con-

vinces itself that the state court erroneously “decline[d] to reach [the]

issue” and “overlooked” it. See Diss. op. at 9050-52. But whether we

review a claim de novo under the AEDPA is a question of federal law and,

on that question, as explained above, we are bound by Reynoso and Pirtle.

9036 MURDOCH v. CASTRO

. . . an unacceptable risk is presented of impermissible factors

coming into play.” 425 U.S. at 505. Thus, a defendant’s right

to a fair trial is violated if he is required to appear in the pres-

ence of the jury in such attire. Id. at 505-06. The Court reaf-

firmed this basic position in Flynn, but held that the presence

of extra security personnel in the courtroom during trial did

not necessarily violate the defendant’s Sixth and Fourteenth

Amendment rights because, unlike the situation described in

Williams, it was not “inherently prejudicial.” Flynn, 475 U.S.

at 569. Although the presence of additional security in the

courtroom might violate a defendant’s right to a fair trial in

a particular case, Flynn’s trial, in which four uniformed state

troopers sat silently in the first row of the spectator section,

did not present such a case. Id. at 569-72. In Musladin I, we

held that the presence of the victim’s family in the courtroom

while wearing buttons was inherently prejudicial, and was an

unreasonable application of the test described in Williams and

Flynn. Musladin I, 427 F.3d at 658-61.

When the Supreme Court vacated our grant of habeas relief

in Musladin I, it pointed out that “[b]oth Williams and Flynn

dealt with government-sponsored practices.” Musladin II, 549

U.S. at 75. No Supreme Court case had applied Williams and

Flynn to courtroom conduct by private actors, and, because

part of the test established in Williams and Flynn asked

“whether the [allegedly prejudicial] practices furthered an

essential state interest,” it was not clearly established that the

test would apply to actions by private actors. Id. at 76. The

Court summarized its reasoning as follows:

Given the lack of holdings from this Court regard-

ing the potentially prejudicial effect of spectators’

courtroom conduct of the kind involved here, it can-

not be said that the state court “unreasonabl[y]

appli[ed] clearly established Federal law.”

§ 2254(d)(1). No holding of this Court required the

California Court of Appeal to apply the test of Wil-

liams and Flynn to the spectators’ conduct here.

MURDOCH v. CASTRO 9037

Therefore, the state court’s decision was not contrary

to or an unreasonable application of clearly estab-

lished federal law.

Id. at 77 (emendations in original).

Similarly, in Van Patten, the Court held that it was not

clearly established that a defendant received ineffective assis-

tance of counsel if his lawyer represented him via speaker-

phone, rather than by being physically present in the court-

room. 128 S. Ct. at 746-47. The Seventh Circuit had granted

habeas relief on the basis of United States v. Cronic, 466 U.S.

648 (1984), which held that in certain circumstances a defen-

dant need not prove that he was actually prejudiced by his

attorney’s conduct. The logic of Cronic is that, in some situa-

tions, “the likelihood that any lawyer, even a fully competent

one, could provide effective assistance is so small that a pre-

sumption of prejudice is appropriate without inquiry into the

actual conduct of the trial.” Id. at 659-60. One situation in

which Cronic applies is when “counsel [is] either totally

absent, or prevented from assisting the accused during a criti-

cal stage of the proceeding.” Id. at 659 n.25. The Court

reversed the Seventh Circuit because Cronic did not clearly

apply to the facts at hand. Van Patten, 128 S. Ct. at 746.

Although an attorney who participated in a hearing telephoni-

cally might not do as well as one who was physically present

in the courtroom, the state court could reasonably believe that

the attorney’s performance would not be so poor as to justify

relief without showing prejudice: “Our cases provide no cate-

gorical answer to this question.” Id.

In Panetti, 127 S. Ct. 2842, by contrast, there was no prin-

cipled way to apply the Court’s precedent to a somewhat new

factual situation and reach the state court’s result; thus, the

Court granted habeas relief. Panetti concerned the pending

execution of person with a history of mental illness. 127 S. Ct.

2848-49. The Court identified the controlling legal principle

as the holding of Ford v. Wainwright, 477 U.S. 399 (1986),

9038 MURDOCH v. CASTRO

which required that a prisoner who has made “a substantial

threshold showing of insanity” be given a competency hearing

before being subject to execution. Id. at 426 (Powell, J., con-

curring in part and concurring in the judgment).7 The Court

held that it was clearly established that Ford required a com-

petency hearing with procedural protections for the prisoner,

even though the standard in Ford was stated in general terms

and the facts were not identical to those with which it was

now faced. Panetti, 127 S. Ct. at 2858-59. There was no rea-

sonable way to apply Ford that would not reach this result,

and thus the state court had unreasonably applied the law

when it failed to provide Panetti with a proper competency

hearing. Id. at 2858.

[2] The common thread in all these cases is that when there

is a principled reason for the state court to distinguish

between the case before it and Supreme Court precedent, the

state court’s decision will not be an unreasonable application

of clearly established Supreme Court law. As we stated in

Moses v. Payne, 555 F.3d 742 (9th Cir. 2009):

[W]hen a Supreme Court decision does not

“squarely address[ ] the issue in th[e] case” or estab-

lish a legal principle that “clearly extend[s]” to a

new context to the extent required by the Supreme

Court in these recent decisions, it cannot be said,

under AEDPA, there is “clearly established”

Supreme Court precedent addressing the issue before

us, and so we must defer to the state court’s decision.

Id. at 754 (emendations in original) (quoting Van Patten, 128

S. Ct. at 746, 745).

7

Because Justice Powell’s opinion represented the narrowest ground on

which five Justices agreed, the Panetti court recognized it as the control-

ling opinion. 127 S. Ct. at 2856.

MURDOCH v. CASTRO 9039

B

[3] The Supreme Court has examined the potential con-

flicts between the Confrontation Clause and other rights and

privileges, including the marital privilege, Crawford v. Wash-

ington, 541 U.S. 36 (2004),8 the Fifth Amendment privilege

against self-incrimination, Douglas v. Alabama, 380 U.S. 415

(1965), and the state’s interest in the confidentiality of adjudi-

cations of juvenile delinquency, Davis v. Alaska, 415 U.S.

308 (1974). But no Supreme Court case has directly addressed

the potential conflict between state-law attorney-client privi-

lege and the Confrontation Clause, as we acknowledged in

Murdoch I. 365 F.3d at 702 (“Today, we address a situation

where a substantial showing has been made that, depending

upon the content of Dinardo’s letter, the Confrontation Clause

and attorney-client privilege are potentially at odds—a set of

facts the Supreme Court has not yet examined.”) (emphasis

added). Indeed, in a case involving the attorney-client privi-

lege, the Supreme Court has expressly stated that it would not

consider the question whether the attorney-client privilege

might yield in the face of constitutional rights. Swidler & Ber-

lin v. United States, 524 U.S. 399, 408 n.3 (1998).

In Swidler, the Supreme Court addressed the scope of the

attorney-client privilege — specifically, “the extent to which

the privilege survives the death of the client.” Id. at 403. The

Independent Counsel sought notes taken by an attorney during

a meeting with his client, former Deputy White House Coun-

sel Vincent Foster. Foster sought legal representation, but,

shortly after the meeting, he committed suicide. Id. at 401-02.

The Independent Counsel argued that “the attorney-client

privilege should not prevent disclosure of confidential com-

8

Crawford was decided after Murdoch’s conviction became final and

does not apply retroactively on collateral review. See Whorton v. Brock-

ting, 549 U.S. 406 (2007). Thus, whether the Supreme Court in Crawford

explained “what the Sixth Amendment was supposed to prevent,” Diss.

op. at 9056, is irrelevant to our review under the AEDPA.

9040 MURDOCH v. CASTRO

munications where the client has died and the information is

relevant to a criminal proceeding.” Id. at 403.

The Court began by discussing the purpose of the privilege,

“to encourage ‘full and frank communication between attor-

neys and their clients and thereby promote broader public

interests in the observance of law and the administration of

justice.’ ” Id. (quoting Upjohn Co. v. United States, 449 U.S.

383, 389 (1981)). The Independent Counsel analogized the

situation to the testamentary exception to the attorney-client

privilege, arguing that “in criminal proceedings, the interest in

determining whether a crime has been committed should

trump client confidentiality.” Id. at 406. The Court disagreed,

stating that, unlike with the testamentary exception, “[t]here

is no reason to suppose as a general matter that grand jury tes-

timony about confidential communications furthers the cli-

ent’s intent.” Id. As pertinent here, the Court further reasoned

that “there is no case authority for the proposition that the

privilege applies differently in criminal and civil cases.” Id. at

408-09. Significantly, the Court noted that, “Petitioners, while

opposing wholesale abrogation of the privilege in criminal

cases, concede that exceptional circumstances implicating a

criminal defendant’s constitutional rights might warrant

breaching the privilege,” but the Court stated that “[w]e do

not . . . need to reach this issue, since such exceptional cir-

cumstances clearly are not presented here.” Id. at 408 n.3

(emphasis added).

[4] The Supreme Court accordingly has explicitly stated

that it was not deciding whether the attorney-client privilege

might have to yield to a criminal defendant’s constitutional

rights. We have held that a constitutional principle is not

clearly established for purposes of § 2254 where the Supreme

Court has expressly concluded that an issue is an “open ques-

tion.” Earp v. Ornoski, 431 F.3d 1158, 1185 (9th Cir. 2005);

see also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008)

(holding that the Supreme Court had not clearly established,

for purposes of § 2254, that the admission of propensity evi-

MURDOCH v. CASTRO 9041

dence in that case was unconstitutional because the Supreme

Court had expressed no opinion on the issue and the petitioner

accordingly could “point to no Supreme Court precedent”

establishing the constitutional right); Larson v. Palmateer,

515 F.3d 1057, 1066 (9th Cir. 2008) (“Because the Court has

expressly left this issue an open question, the state court did

not unreasonably apply clearly established federal law in

determining that the admission of evidence of Larson’s crimi-

nal history did not violate due process.” (internal quotation

marks omitted)).

The Eighth Circuit has relied on the Supreme Court’s

express reservation of the issue in Swidler to hold that the

issue is not clearly established for purposes of § 2254. In

Newton v. Kemna, 354 F.3d 776 (8th Cir. 2004), the state trial

court denied the defendant’s motion to produce the only eye-

witness’ medical records. The Eighth Circuit “note[d] that the

Supreme Court has recognized in other circumstances that

constitutional rights can trump evidentiary privileges,” citing

Davis and Swidler. Id. at 781. The court stated, however, that

Swidler “expressly left open the question of whether a crimi-

nal defendant’s constitutional rights might overcome the

attorney-client privilege,” and therefore concluded that the

Supreme Court had not clearly established whether a state’s

“physician-patient privilege must give way to a defendant’s

desire to use psychiatric records in cross-examination.” Id. at

781, 782; see also Johnson v. Norris, 537 F.3d 840, 846-47

(8th Cir. 2008) (discussing Newton and Swidler and conclud-

ing that, although Davis and Pennsylvania v. Ritchie, 480 U.S.

39 (1987), “establish that in at least some circumstances, an

accused’s constitutional rights are paramount to a State’s

interest in protecting confidential information,” those cases

“do not establish a specific legal rule that answers whether a

State’s psychotherapist-patient privilege must yield to an

accused’s desire to use confidential information in defense of

a criminal case”). As the Eighth Circuit reasoned in Newton,

“[g]iven the restrictive nature of habeas review, it is not our

province to speculate as to whether the Supreme Court, if

9042 MURDOCH v. CASTRO

faced with the issue, would find that [a state’s] physician-

patient privilege must give way to a defendant’s desire to use

[privileged material] in cross-examination.” Newton, 354 F.3d

at 782.

It is not mere formalism to distinguish between attorney-

client privilege and other rights and privileges the Court has

dealt with in its Confrontation Clause jurisprudence. The

attorney-client privilege is, after all, “one of the oldest recog-

nized privileges for confidential communications,” Swidler,

524 U.S. at 403. The Supreme Court might well decide that

it is worthy of greater protection than the marital privilege,

see Crawford v. Washington, 541 U.S. 36, or the confidential-

ity of juvenile delinquency proceedings, see Davis v. Alaska,

415 U.S. 308. In addition, the Court might be more likely to

protect documents subject to attorney-client privilege because

it is easier to maintain such protection without eliminating the

defendant’s ability effectively to cross-examine a witness.

Because the attorney-client privilege protects only a commu-

nication between an attorney and a client, not the facts that are

communicated, a defendant would remain free to question the

witness about the underlying facts, just as happened here.

Despite not having access to the letter, Murdoch was able to

cross-examine Dinardo on a wide range of subjects, including

Dinardo’s earlier denial of involvement in the murder. As the

Supreme Court has explained, the attorney-client privilege

does not “create a broad ‘zone of silence’ over” the subject

matter of the communication. “The privilege only protects

disclosure of [the] communications [themselves]; it does not

protect disclosure of the underlying facts,” so long as the

underlying facts can be proven without resort to the privileged

materials. Upjohn, 449 U.S. at 395.

In Crawford, by contrast, the marital privilege prevented

the defendant from cross-examining the witness at all. See

541 U.S. at 40. The same was true in Douglas v. Alabama,

380 U.S. at 416-17, when the witness asserted his Fifth

Amendment privilege against self-incrimination.

MURDOCH v. CASTRO 9043

[5] We acknowledge the possibility that the Supreme

Court may in the future well decide that the Confrontation

Clause in some cases requires the disclosure of documents

that are subject to the attorney-client privilege. But under the

highly deferential standard established by AEDPA and the

Supreme Court, as long as the state court could have found a

principled reason not to apply the Court’s precedents to the

current case, we may not grant habeas relief. As was the case

in Musladin II, 549 U.S. at 77, “[n]o holding of th[e Supreme]

Court required the California Court of Appeal to apply” cases

such as Douglas and Davis to Murdoch. The relationship

between the Confrontation Clause and the attorney-client

privilege has not been clearly established by the Supreme

Court; as a result, we cannot say that the California court

unreasonably applied clearly established Supreme Court law

to Murdoch’s case.9

IV. CONCLUSION

[6] Because the Supreme Court has not clearly established

whether and in what circumstances the attorney-client privi-

lege must give way in order to protect a defendant’s Sixth

Amendment confrontation rights, the California state court

could not have unreasonably applied clearly established

Supreme Court law when it denied Murdoch access to the let-

9

The concurrence faults Murdoch because his counsel “only sought dis-

closure of the letter Dinardo had written to his lawyer,” and did not move

to strike Dinardo’s testimony. Concur. op. at 9044-45. It assumes that the

exclusive procedure for preserving a Sixth Amendment confrontation

claim is a motion to strike the challenged testimony, but cites no case so

holding. Instead, the authorities on which Judge Silverman relies state

only what is “ordinarily . . . appropriate,” or that a defendant is “entitled”

to have the testimony stricken, or what “many judges . . . agree.” Id. at

9044-45. Because Judge Silverman agrees that Murdoch “unquestionably

perfected his objection to the court’s denial of the disclosure request,” id.

at 9045, we agree with Chief Judge Kozinski that, because “California is

satisfied with the procedural posture of this case, [w]e are in no position

to disagree.” Diss. op. at 9067.

9044 MURDOCH v. CASTRO

ter. See Musladin II, 549 U.S. at 77. To the extent that it holds

to the contrary, Murdoch I is overruled.

For the reasons set forth above, the judgment of the district

court is AFFIRMED.

SILVERMAN, Circuit Judge, concurring:

This case is built on a false premise — that there was some-

how a conflict between Dinardo’s right to claim the attorney-

client privilege under California law and Murdoch’s federal

constitutional right of confrontation. There was no conflict.

The trial court could have sustained Dinardo’s claim of privi-

lege, and then having done so, stricken Dinardo’s direct testi-

mony on the ground that Murdoch could not be effectively

cross-examined. This is a very common scenario when a wit-

ness testifies on direct but then cannot be cross-examined. See

Toolate v. Borg, 828 F.2d 571, 572 (9th Cir. 1987)

(“Ordinarily, when a testifying witness cannot or will not be

cross-examined, the appropriate relief . . . is to strike the

direct testimony of the witness and to instruct the jury to dis-

regard it.”) (internal quotation marks omitted); United States

v. Brown, 634 F.2d 819, 824 (5th Cir. 1981) (stating that

while “it is by no means clear that the appropriate resolution

to a conflict between [the confrontation] right and the marital

privilege is the actual introduction of the testimony” a defen-

dant is entitled “to strike that portion of the testimony of the

witnesses against him with regard to which his right of con-

frontation is lost”); 1 Kenneth S. Broun, et al., McCormick on

Evidence § 19 (6th ed. 2006) (stating that “many judges and

writers” agree that excluding the direct testimony is the

proper remedy when a witness cannot be properly cross-

examined).

The problem is that Murdoch’s counsel only sought disclo-

sure of the letter Dinardo had written to his lawyer, deputy

MURDOCH v. CASTRO 9045

public defender Star. When the trial court sustained the claim

of attorney-client privilege, that’s where Murdoch’s lawyer

was content to leave it. His lawyer unquestionably perfected

his objection to the court’s denial of the disclosure request,

but never sought to strike Dinardo’s testimony. This is the

remedy that the law provides in the case of a witness who

cannot be cross-examined for any reason. If the direct testi-

mony cannot be tested by cross-examination, it cannot stand

and is stricken.

Had the trial court denied a motion to strike Dinardo’s testi-

mony, we would have a legitimate confrontation problem on

our hands, but no such motion was ever made. Thus, it cannot

be said that the state court denied Murdoch’s confrontation

right at all, much less that it acted unreasonably or contrary

to clearly established Supreme Court law. In the absence of

a constitutional violation, federal habeas corpus relief cannot

be granted. 28 U.S.C. § 2254(a), (d).

For these reasons, I would affirm the denial of habeas

relief.

Chief Judge KOZINSKI, dissenting, with whom Judges W.

Fletcher and Wardlaw join, and Judges Thomas and McK-

eown join with respect to Parts 2 and 3:

If it wasn’t for bad luck, Murdoch wouldn’t have no luck

at all. He’s wakin’ up this mornin’ in jail when there’s strong

proof he ain’t done nothing wrong. I would certainly defer to

a jury’s contrary verdict if it had seen this evidence and con-

victed Murdoch after a fair trial, presided over by a fair judge,

followed by an appeal where the justices considered all of his

constitutional claims. But Murdoch had none of these.

Start with the trial judge: He was so worried that the prose-

cution couldn’t put on sufficient evidence to convict Murdoch

9046 MURDOCH v. CASTRO

that he sentenced Murdoch’s alleged confederate (Dinardo) to

life in prison, but promised to give him a big break if he testi-

fied against Murdoch. True to his word, right after Dinardo

fingered Murdoch, and as Murdoch’s jury was retiring to

deliberate, the judge rewarded Dinardo by reducing his life

sentence to a walk-away twelve years—or, as Dinardo him-

self estimated, actual time served of about five years.

Put yourself in Dinardo’s shoes: You’ve just been sen-

tenced to spend the rest of your days behind bars, never again

to hold your infant daughter in your arms. But the judge

immediately dangles the promise of leaving prison and resum-

ing a normal life before she turns eight, if only you help nail

Murdoch. Prosecutors are known to offer defendants a break

if they testify truthfully against a co-defendant. For a judge to

goad someone he’s just given a life sentence into helping the

prosecution by promising to give him his life back, but only

if he helps finger the defendant, is judicial extortion.* You’d

*I didn’t coin the term; it comes from Philip Kurland, probably the pre-

eminent constitutional scholar at the time of Watergate, who referred to

Chief Judge Sirica’s similar misconduct as “a form of extortion.” Man of

the Year: Judge John J. Sirica, Time, Jan. 7, 1974. James Fellers, then the

ABA’s President-Elect, likened Judge Sirica’s treatment of the Watergate

defendants to the “torture rack and the Spanish Inquisition.” Id. Dean

Monroe Freedman of Hofstra Law School argued that “Sirica deserves to

be censured for becoming the prosecutor himself.” Id.

Sirica’s unconscionable conduct is a blemish on the reputation of the

federal courts. While covering him with wet warm kisses as to his other

questionable conduct, the D.C. Circuit stopped short of approving Sirica’s

blackjacking of the defendants. United States v. McCord, 509 F.2d 334,

346 n.35 (D.C. Cir. 1974) (en banc). No one, until today, has. Even the

trial judge in Murdoch and Dinardo’s cases recognized a judge shouldn’t

act this way. See p. 9063 infra. We’ve said as much in the past: “[J]udicial

involvement in plea negotiations inevitably carries with it the high and

unacceptable risk of coercing a defendant to accept the proposed agree-

ment,” and that “violate[s] a defendant’s fundamental constitutional

rights.” United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992).

“[C]ourts must not use the sentencing power as a carrot and stick . . . and

they must not create an appearance of such a practice.” United States v.

Stockwell, 472 F.2d 1186, 1187 (9th Cir. 1973). One wonders whether

these cases survive today.

MURDOCH v. CASTRO 9047

have to be more than human not to do or say whatever it takes

to grab that brass ring.

Not only did the trial judge strong-arm Dinardo into testify-

ing, he prevented the defense from seeing—and so from using

for cross-examination—a letter Dinardo had written a year

earlier exculpating Murdoch and disclosing that the police had

coerced Dinardo into making false accusations. The letter,

written by Dinardo’s own hand on notebook paper, is still

under seal, protected by Dinardo’s vestigial attorney-client

privilege, but Judge Bright’s reconstruction is a fair summary:

I would like to make a statement about the facts sur-

rounding my arrest for robbery and murder. I was

taking care of my young daughter when Long Beach

police arrested me at my home in Berkeley. Two

policemen, Detective Pavek and his partner, took me

to the Berkeley Police Department and interviewed

me. I wanted to get back to my daughter as I worried

about her welfare. At that time, Detective Pavek

coerced a statement from me and promised not to

charge me if I made a statement that Charles Mur-

doch participated in the crime. But, I do not actually

know Mr. Murdoch, although I know his brother.

Mr. Murdoch and I did not commit any crime.

Murdoch v. Castro, 489 F.3d 1063, 1071 (9th Cir. 2007)

(Bright, J., dissenting).

This letter would have destroyed Dinardo as a witness, so

the trial judge suppressed it. After all, what’s the point of put-

ting the screws on Dinardo only to have his testimony deci-

mated by his contrary prior statement? So the defense never

got to see the letter and the jury never heard of it, despite

cases from the state court of appeal and the state supreme

court squarely holding Murdoch was entitled to the letter.

You’d think that, with all that controlling authority on

point, the state appellate court would have reversed the con-

9048 MURDOCH v. CASTRO

viction. But you’d be wrong. Judges can only reverse a con-

viction if they consider the defendant’s winning argument.

Here, the court of appeal, for reasons that can be explained

only one way, see pp. 9050-52 infra, did not. It’s not like the

court summarily affirmed the conviction; it spent thirty pages

going over Murdoch’s other arguments and knocking them

down like bowling pins. But Murdoch’s best argument—the

one for which the government had no answer—the state

appellate judges just skipped over as if he never made it. This

is passing strange, but it’s what happened.

Now, to complete Murdoch’s run of ill luck, a plurality of

our panel grants deference to a non-existent state-court “adju-

dication” of his winning claim and concludes that the state

courts were not unreasonable in holding what they in fact

never held. And, even though a majority of the en banc panel

agrees that Murdoch was denied his right to confrontation, our

concurring colleague denies relief based on a procedural

default argument that the state has never made. If everybody

went to heaven, I do believe poor Murdoch would miss the

call.

1. AEDPA Deference. The plurality holds that the state

courts adjudicated Murdoch’s Confrontation Clause claim on

the merits, so we must defer under AEDPA. Pl. op. 9032-33

& n.5. That’s contrary to the facts, because the last reasoned

decision of the state courts contains not a single word about

the Confrontation Clause; it’s contrary to the concerns of

comity and federalism that motivated AEDPA, because the

state courts have interpreted the Confrontation Clause as Mur-

doch suggests; and it’s contrary to the very essence of habeas

review, because no court will ever actually decide Murdoch’s

constitutional claim on the merits (unless lightning strikes and

the Supreme Court intervenes).

a. Murdoch argued to the state courts that his Sixth Amend-

ment right to confrontation was violated when Dinardo was

allowed to testify, but could not be cross-examined about a

MURDOCH v. CASTRO 9049

letter he wrote exculpating Murdoch. Over the course of

nearly twenty pages, Murdoch argued to the state court of

appeal that “while the attorney-client privilege is entitled to

great deference, the privilege must nonetheless yield when it

clashes with more compelling Sixth Amendment rights of a

criminal defendant to confrontation and cross-examination.”

Opening Brief at 125, People v. Murdoch, No. NA020621

(Cal. Ct. App. May 22, 1997). He also argued that, if the priv-

ilege couldn’t be forced to yield, “the constitutionally man-

dated solution to the dilemma is to exclude the witness’

testimony.” Id. at 137 (emphasis in original). In other words,

Murdoch argued that either he should have been allowed to

cross-examine Dinardo about the letter, or Dinardo’s testi-

mony should have been excluded. These arguments were

backed up by plenty of citations to federal cases like Douglas

v. Alabama, 380 U.S. 415 (1965), and Davis v. Alaska, 415

U.S. 308 (1974). And they were slam-dunks under California

cases like Vela v. Superior Court, 208 Cal. App. 3d 141 (Ct.

App. 1989), and People v. Mincey, 2 Cal.4th 408 (1992), both

of which held that the Sixth Amendment right to confronta-

tion supersedes the attorney-client privilege.

Murdoch took his appeal to the same court of appeal that

decided Vela, and his case was assigned to the very same divi-

sion of that court. He opened his Confrontation Clause argu-

ment by citing Vela, and he even had two of the Vela justices

on his panel. Yet they did not discuss Murdoch’s Confronta-

tion Clause claim or distinguish Vela and Mincey. They sim-

ply ignored the issue, devoting not a single word to it over the

course of a detailed thirty-page opinion that decided every

one of Murdoch’s other claims. The court of appeal’s discus-

sions of Murdoch’s claims under the Fourth and Fourteenth

Amendments consume almost seven pages. People v. Mur-

doch, No. NA20621, slip op. at 6-10, 19-20 (Cal. Ct. App.

Mar. 26, 1998). Its analysis of Murdoch’s Ex Post Facto

Clause argument takes up almost four pages. Id. at 23-26. The

Sixth Amendment isn’t even mentioned.

9050 MURDOCH v. CASTRO

The court of appeal’s failure to discuss the Confrontation

Clause is all the more conspicuous because its opinion

addressed Murdoch’s other arguments about Dinardo’s testi-

mony and the letter; almost a third of the opinion—nine pages

—is devoted to these topics. Id. at 14-19. Four and a half of

those are specifically devoted to Murdoch’s complaint that the

letter was improperly withheld. Id. at 14-19. But these pages

are filled with discussions of California evidence law, the

nature of the attorney-client privilege under California law

and various state-law objections. None of the cases the court

of appeal cites apply the correct Sixth Amendment standard

or do the relevant analysis. The Federal Constitution isn’t

mentioned, the Confrontation Clause isn’t mentioned and

there’s definitely no discussion of Douglas, Davis, Vela or

Mincey.

If you wonder how this could have happened, just read the

state’s response brief in the court of appeal. Like the court of

appeal’s opinion, it cites neither Vela nor Mincey. The state

nowhere engages Murdoch’s Sixth Amendment claim or so

much as mentions his Confrontation Clause arguments about

the letter. Response Brief at 33-36, Murdoch, Nos. B100877+.

None of this could possibly be Murdoch’s fault; he couldn’t

have done more to put the court of appeal on notice of his

claim. Just look at the table of contents in his opening brief:

XI. EVEN IF DINARDO’S LETTER WERE PRIV-

ILEGED, APPELLANT’S 5TH AND 6TH

AMENDMENT RIGHTS TO A FAIR TRIAL AND

TO CONFRONT AND CROSS-EXAMINE THE

CHIEF WITNESS AGAINST HIM WOULD TAKE

PRECEDENCE OVER DINARDO’S ATTORNEY-

CLIENT PRIVILEGE UNDER THE PARTICU-

LAR FACTS OF THIS CASE

Id. at v. Murdoch’s reply brief even tried to “respectfully redi-

rect[ ] the Court’s attention” to the sections of his opening

MURDOCH v. CASTRO 9051

brief that set out his Confrontation Clause arguments, ones

that the state’s brief had overlooked. Reply Brief at 54-56 &

n.17, id. Yet the court of appeal still decided his case without

any discussion or acknowledgment of the Confrontation

Clause.

We know they must have overlooked it, because California

appellate courts can’t intentionally skip over any claims: The

California Constitution prohibits it. See 5 Cal. Jur. 3d Appel-

late Review § 706; see also Cal. Const. art. VI, § 14. To be

sure, something as concise as “Defendant’s remaining conten-

tions do not merit discussion” will suffice. See Lewis v. Supe-

rior Court, 19 Cal.4th 1232, 1261-64 (1999); People v. Rojas,

118 Cal. App. 3d 278, 288-90 (Ct. App. 1981). But something

must be said to indicate that the court is aware of the remain-

ing issues and has resolved, rather than overlooked, them. The

court of appeal in this case didn’t include even a catch-all line

and thus, according to state law, must be presumed to have

overlooked the unaddressed issues.

It’s not as though judges are immune from making this kind

of mistake. E.g., United States v. California, 558 F.2d 1347,

1353 (9th Cir. 1977) (noting on rehearing that “we over-

looked” an argument made “in [the] briefs on appeal” ), rev’d,

438 U.S. 645 (1978); George Pepperdine Found. v. Pepper-

dine, 126 Cal. App. 2d 154, 163-64 (Ct. App. 1954) (noting

on rehearing that, “[b]y inadvertence,” the court had “neglect-

ed” to distinguish between two separate demurrers); see also

Fed. R. App. P. 40(a)(2); 5 Cal. Jur. 3d Appellate Review

§ 723 (2009). Truth be told, it happens to all of us once in a

while.

An oversight usually doesn’t make a difference because

issues insignificant enough to escape notice are often merit-

less. See, e.g., California, 558 F.2d at 1353; Pepperdine, 126

Cal. App. 2d at 164. But Murdoch had a winning argument

based on binding California case law interpreting the federal

Confrontation Clause—an argument the state effectively con-

9052 MURDOCH v. CASTRO

ceded by not responding to it. So, had the court of appeal

actually thought about that claim, as it was required to, it

would have had to grant relief or disregard one of its own

cases (Vela) while figuring out some way to distinguish on-

point precedent from the California Supreme Court (Mincey).

Courts just don’t do that kind of work in white ink.

Not California Courts of Appeal at any rate. The require-

ment that they show they “necessarily and carefully analyzed

the contentions” in play is no mere formality. Rojas, 118 Cal.

App. 3d at 290. They can be reversed for disregarding it. See

Amwest Sur. Ins. Co. v. Wilson, 11 Cal.4th 1243, 1266-68

(1995). The California Supreme Court has called this require-

ment an “[i]mportant incident[ ] of the right to appeal,” one

that’s “been in existence as to [the California Supreme Court]

since the adoption of the state Constitution of 1879 and as to

the Courts of Appeal since their creation in 1904.” People v.

Medina, 6 Cal.3d 484, 489, 490 n.5 (1972) (internal citations

omitted). For us to presume that an unmentioned claim was

rejected on the merits does not respect state law. It disdains

it.

When a California court fails to mention a claim, at least

in catch-all fashion, we can be sure that it didn’t decide the

claim. And there is absolutely no authority for the proposition

that a totally unmentioned, and therefore undecided, claim can

be deemed to have been “adjudicated on the merits” when

state law would treat the claim as overlooked. See, e.g., 16A

Federal Procedure § 41:179 (L. ed., West 2010) (“In making

the determination of whether an issue was ‘adjudicated on the

merits’ in state court, the habeas court inquires into: (1) what

state courts have done in similar cases . . . .”). The Supreme

Court has held that when a state court declines to reach an

issue because it erroneously concludes it need not, our review

is de novo. E.g., Rompilla v. Beard, 545 U.S. 374, 390 (2005);

Wiggins v. Smith, 539 U.S. 510, 534 (2003). It makes no

sense to treat an oversight born of negligence better than a

mistake born of careful, if ultimately incorrect, reasoning.

MURDOCH v. CASTRO 9053

b. This case exemplifies the problem with deferring to the

sounds of silence. Had the court of appeal thought about Mur-

doch’s claim, it would have realized that binding case law

resolved the key issue in Murdoch’s favor. Six years before

Murdoch filed his appeal, the California Supreme Court held

that a trial court erred in upholding an assertion of attorney-

client privilege that conflicted with the Sixth Amendment.

Mincey, 2 Cal.4th at 463-64. The facts of Mincey will sound

familiar: A witness, implicated in the crime for which Mincey

was convicted, testified pursuant to a cooperation agreement.

The witness had communications with her attorney that, the

defense believed, would cast doubt on her credibility at trial.

The defense tried to question her about those statements, but

she successfully asserted the attorney-client privilege. In those

precise circumstances—where cross-examination as to

attorney-client communications would have shed light on a

witness’s bias—the highest court in California held that the

trial court erred in sustaining the privilege. It did so based on

the Confrontation Clause. Id. at 463-64.

Mincey is one in a string of California cases to hold that the

attorney-client privilege, a creature of the law of evidence,

must yield to a defendant’s right to effective cross-

examination, a command of the Constitution. The next most

striking example is Vela. There the trial court sustained an

attorney-client privilege claim by “the very police officers

whose trial testimony will be necessary to prove the criminal

charges filed against the defendants.” 208 Cal. App. 3d at

150. The court of appeal—including two members of Mur-

doch’s panel—unanimously reversed, based on the Confron-

tation Clause. Id. at 151.

So, the times when the California courts have actually adju-

dicated claims like Murdoch’s, i.e., when there’s evidence

they thought about the issue as in Vela and Mincey, they’ve

decided that the Sixth Amendment requires exactly what Mur-

doch claims it requires. To reach the opposite conclusion as

the state judges did in Vela, Mincey, etc., all in the name of

9054 MURDOCH v. CASTRO

deference to those judges in Murdoch, does not show defer-

ence. Nor does it further “comity, finality, and federalism.”

Williams v. Taylor, 529 U.S. 420, 436 (2000). It subverts

them.

c. When a state court doesn’t decide a federal claim but we

defer nevertheless, a petitioner is stripped of his right to have

some court, any court, determine whether he’s “in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). This upsets the “delicate bal-

ance” struck by AEDPA between vindicating the rights of

criminal defendants and upholding the authority of state

courts as the primary forum for adjudicating these rights. Wil-

liams, 529 U.S. at 436.

AEDPA vests the state courts with primary responsibility

for determining whether a prisoner’s confinement violates the

Constitution. See id. When states accept this responsibility—

as evidenced by their adjudication of a petitioner’s constitu-

tional claims on the merits—AEDPA requires us to accord

great deference. 28 U.S.C. § 2254(d). When states don’t,

AEDPA deference doesn’t apply and we must review the

claim de novo. E.g., Rompilla, 545 U.S. at 390; Wiggins, 539

U.S. at 534.

This scheme preserves the essence of habeas review

announced in Moore v. Dempsey, 261 U.S. 86, 91-92 (1923)

(Holmes, J.), because it ensures that some court is open to

review the constitutionality of a petitioner’s custody. But if a

federal court defers to a state that failed to decide a claim, no

court a prisoner may turn to will ever determine if his custody

actually violates the Constitution. By hypothesis the state

courts didn’t, and our review will be limited to determining

whether there was an “unreasonable” constitutional error. See

Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).

That’s probably why our colleagues in other circuits have

refused to defer in these circumstances, Lyell v. Renico, 470

F.3d 1177, 1182 (6th Cir. 2006) (Sutton, J.); Canaan v.

MURDOCH v. CASTRO 9055

McBride, 395 F.3d 376, 382 (7th Cir. 2005) (D. Wood, J.);

Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (Miner, J.);

Gruning v. DiPaolo, 311 F.3d 69, 71 & n.5 (1st Cir. 2002)

(Torruella, J.); Neill v. Gibson, 278 F.3d 1044, 1053 (10th

Cir. 2001) (Tacha, C.J.), and even less egregious ones, Shel-

ton v. Purkett, 563 F.3d 404, 408-09 (8th Cir. 2009) (Beam,

J.); Henderson v. Cockrell, 333 F.3d 592, 600-01 (5th Cir.

2003) (Jolly, J.); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.

2001) (Boudin, C.J.); Hameen v. Delaware, 212 F.3d 226,

248 (3d Cir. 2000) (Greenberg, J.); see also Bell v. Cone, 543

U.S. 447, 460-61 (2005) (per curiam) (Ginsburg, J., concur-

ring); Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir.

2002) (Alito, J.).

2. Merits. I would therefore decide Murdoch’s Sixth

Amendment claim de novo. Murdoch had no opportunity to

cross-examine effectively the key prosecution witness about

the primary issue regarding his credibility: whether he wrote

a letter admitting that his testimony against Murdoch was

coerced and untrue. This was not some remote inconsistency

regarding a minor detail irrelevant to guilt or innocence; this

went to the heart of the prosecution’s case. Murdoch’s Sixth

Amendment rights were clearly violated. But I would rule for

Murdoch even on the plurality’s own terms, because it would

have been an objectively “unreasonable application of . . .

clearly established federal law . . . as determined by the

Supreme Court” for the California courts to conclude other-

wise. 28 U.S.C. § 2254(d)(1).

a. The plurality concludes that the supremacy of the Sixth

Amendment over California’s attorney-client privilege isn’t

“clearly established.” Pl. op. at 9042. “There are few sub-

jects,” however, “upon which [the Supreme] Court and other

courts have been more nearly unanimous than in their expres-

sions of belief that the right of confrontation and cross-

examination is an essential and fundamental requirement for

the kind of fair trial which is this country’s constitutional

goal.” Pointer v. Texas, 380 U.S. 400, 405 (1965).

9056 MURDOCH v. CASTRO

In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court held up the trial of Sir Walter Raleigh as an

example of what the Sixth Amendment was supposed to pre-

vent. Read Raleigh’s fate and consider what’s “clearly estab-

lished” about the Sixth Amendment:

The most notorious instances of civil-law examina-

tion occurred in the great political trials of the 16th

and 17th centuries. One such was the 1603 trial of

Sir Walter Raleigh for treason. Lord Cobham,

Raleigh’s alleged accomplice, had implicated him

. . . . Raleigh argued that Cobham had lied to save

himself: “Cobham is absolutely in the King’s mercy;

to excuse me cannot avail him; by accusing me he

may hope for favour.” . . . [D]espite Raleigh’s pro-

testations that he was being tried “by the Spanish

Inquisition,” the jury convicted, and Raleigh was

sentenced to death.

One of Raleigh’s trial judges later lamented that

“ ‘the justice of England has never been so degraded

and injured as by the condemnation of Sir Walter

Raleigh.’ ”

Crawford, 541 U.S. at 44 (citations omitted). This history is

not part of the rule announced in Crawford. It long predates

it. See, e.g., California v. Green, 399 U.S. 149, 157 n.10

(1970).

So, if the Sixth Amendment has been clearly established to

mean anything, it’s that the Cobhams and Dinardos of the

world—defendants who implicate others as accomplices to

curry favor with the sovereign—must either be subject to rig-

orous cross-examination or stand mute before the jury. There

is a “basic understanding that when one person accuses

another of a crime under circumstances in which the declarant

stands to gain by inculpating another, the accusation is pre-

sumptively suspect and must be subjected to the scrutiny of

MURDOCH v. CASTRO 9057

cross-examination.” Lee v. Illinois, 476 U.S. 530, 541 (1986).

There is also a “basic understanding” that forcing a witness to

confront and explain his prior statements that contradict his

testimony is the gold standard for effective cross-examination.

See Harris v. New York, 401 U.S. 222, 223-26 (1971). Noth-

ing can deny a criminal defendant the right to have the gov-

ernment’s key witness subject to this examination, certainly

not “the vagaries of the rules of evidence.” Crawford, 541

U.S. at 61. Not even a coordinate constitutional provision.

Harris, 401 U.S. at 225-26.

b. The plurality stumbles into error because it never takes

AEDPA’s first step—identifying the fundamental legal princi-

ples announced in the Supreme Court’s cases. Instead, the

plurality treats the Supreme Court’s Sixth Amendment juris-

prudence like a series of unconnected contests between the

right to confrontation and a particular rule of evidence: the

Confrontation Clause v. the marital privilege; the Confronta-

tion Clause v. the Fifth Amendment; the Confrontation Clause

v. hearsay; etc. This way of looking at the Supreme Court’s

cases is myopic and wrong.

The Supreme Court uses cases with discrete facts to

announce general principles. AEDPA instructs state courts to

reasonably apply those principles, see Williams v. Taylor, 529

U.S. 362, 412 (2000), which the Court defines as the “funda-

mental principles established by [its] most relevant prece-

dents.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 258 (2007)

(emphasis added). “AEDPA does not require state and federal

courts to wait for some nearly identical factual pattern before

a legal rule must be applied.” Panetti v. Quarterman, 551

U.S. 930, 953 (2007) (internal citations and quotation marks

omitted); see also Lockyer v. Andrade, 538 U.S. 63, 76

(2003). The plurality’s insistence that habeas petitioners pro-

duce a “ ‘spotted calf’ on the precise issue at hand” has no

foundation in law. Bradley v. Duncan, 315 F.3d 1091, 1101

(9th Cir. 2002).

9058 MURDOCH v. CASTRO

When there’s no case on point, AEDPA permits relief if “a

state court either unreasonably extends a legal principle from

[the Supreme Court’s] precedent to a new context where it

should not apply or unreasonably refuses to extend that prin-

ciple to a new context where it should apply.” Williams, 529

U.S. at 407 (emphasis added). All of the Court’s Confronta-

tion Clause jurisprudence points to one fundamental principle:

Criminal defendants must be afforded the opportunity to

effectively cross-examine the witnesses against them. E.g.,

Davis, 415 U.S. at 316; Pointer, 380 U.S. at 405; Douglas,

380 U.S. at 418-20. That, and nothing else, is what needs to

be “clearly established.” See Abdul-Kabir, 550 U.S. at 258.

We can divine this “fundamental principle” solely from

cases where a hearsay exception or court procedure prevented

effective cross-examination, e.g., Lilly v. Virginia, 527 U.S.

116 (1999); Coy v. Iowa, 487 U.S. 1012 (1988). Williams

instructs us to reason analogically, and it would be unreason-

able to refuse to extend the principle established in those

cases to Murdoch’s case. The right to cross-examination is

“functional,” and the harm to “reliability in . . . truth-finding,”

Kentucky v. Stincer, 482 U.S. 730, 737 (1987), caused by

denying a defendant access to a prior inconsistent statement

by the chief witness against him is far greater than the harm

of allowing a witness to testify behind a screen. Compare

Coy, 487 U.S. at 1020, with Lee, 476 U.S. at 541. See also

United States v. Mayans, 17 F.3d 1174, 1184 (9th Cir. 1994);

Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir. 1980).

But we need not look afield. The Supreme Court has a spe-

cific category of Confrontation Clause cases that address “re-

strictions imposed by law or by the trial court on the scope of

cross-examination.” Stincer, 482 U.S. at 737 (internal quota-

tion marks omitted). For example, the Court found a Confron-

tation Clause violation where “defense counsel was restricted

by state confidentiality provisions from questioning a witness

about his juvenile criminal record, although such evidence

might have affected the witness’ credibility.” Id. at 738 (citing

MURDOCH v. CASTRO 9059

Davis, 415 U.S. at 318). Even where the law that restricts

cross-examination is a coordinate constitutional provision like

the Fifth Amendment, admitting the witnesses’ testimony

while upholding the privilege violates the Confrontation

Clause. Douglas, 380 U.S. at 420. The plurality cites no cases

—because none exist—where the Supreme Court upheld the

admission of testimony after a witness invoked a privilege

that prevented “impeach[ment] by use of his earlier conflict-

ing statements.” Harris, 401 U.S. at 226. No such cases exist

because “it is axiomatic that the defendant may employ the

witness’s prior inconsistent statements in order to impeach”

the witness’s testimony. United States v. Adamson, 291 F.3d

606, 612 (9th Cir. 2002).

The plurality’s discussion of whether the attorney-client

privilege is “worthy of greater protection” than a state’s mari-

tal privilege, pl. op. at 9042, is utterly beside the point. Surely

neither is of higher dignity than the Fifth Amendment

privilege—the granddaddy of all evidentiary privileges—

which nevertheless proved insufficient to overcome the Con-

frontation Clause in Douglas. 380 U.S. at 420. Even if the

attorney-client privilege were of the same dignity as the Fifth

Amendment, the need for “cross-examination and impeach-

ment” would overcome it. Harris, 401 U.S. at 223-26. As in

Harris, it’s not an all-or-nothing proposition: Murdoch could

have been allowed to cross-examine Dinardo based on the let-

ter, but Dinardo could have been allowed to retain a species

of use immunity, in that the letter could not then be used by

the state against him in a criminal case. See, e.g., Bittaker v.

Woodford, 331 F.3d 715, 721-25 (9th Cir. 2003) (en banc);

see also People v. Hunter, 2005 WL 1377738, at *10 (Cal. Ct.

App. June 10, 2005) (Kline, J., concurring).

At any rate, this issue is much simpler than the plurality

makes it out to be. Either an evidentiary privilege operates to

deny an opportunity for effective cross-examination or it

doesn’t; if it does, the Sixth Amendment prohibits both giving

effect to the privilege and admitting the witness’s statements.

9060 MURDOCH v. CASTRO

The privilege may yield or the witness may be excluded, but

one or the other has to give. The bottom line is clearly estab-

lished by a long line of Supreme Court cases: A witness may

not testify against a defendant in a criminal trial if that wit-

ness cannot be cross-examined effectively.

Swidler & Berlin v. United States, 524 U.S. 399, 408 n.3

(1998), is nowhere to the contrary. The plurality relies on

Swidler’s supposed “reservation” of a question about the

attorney-client privilege as proof that the superiority of the

Bill of Rights over California evidence law remains an open

question. Obviously Swidler didn’t make any such reserva-

tion. First, Swidler was a case about whether the attorney-

client privilege survived the death of a client; it did not deal

with a conflict between that privilege and anyone’s constitu-

tional rights. Id. at 401. Second, even the petitioner in Swidler

conceded that the privilege could be breached when a crimi-

nal defendant’s constitutional rights are implicated. Id. at 408

n.3. Third, the Supreme Court did not “reserve” a Sixth

Amendment question for another day; the Court’s opinion

contains not a single word about the Confrontation Clause.

The Court simply noted that it did not “need to reach” the far

broader question of when the attorney-client privilege must

yield in the face of a criminal defendant’s constitutional rights

at trial. Id.

But again, all this is beside the point. It doesn’t matter if the

attorney-client privilege turns out to be the Rock of Gibralter.

If it is, the Supreme Court’s cases teach that the testimony of

the un-cross-examined witness can’t come in. We know this

from Douglas, which dealt with just such an inviolable

privilege—the Fifth Amendment. 380 U.S. at 420. Nothing in

Swidler calls this remedy into question, because Swidler dealt

only with whether the privilege can be breached. The prose-

cutors there weren’t trying to admit the privileged communi-

cations at trial; they were trying to learn of their contents in

furtherance of an investigation.

MURDOCH v. CASTRO 9061

c. These “fundamental principles” of the right to confronta-

tion have not escaped other federal courts of appeals. The

Second Circuit has held that “where assertion of the [attorney-

client] privilege unduly restricts a defendant’s cross-

examination, the witness’ direct testimony may have to be

stricken.” United States v. Coven, 662 F.2d 162, 170-71 (2d

Cir. 1981). The Seventh Circuit has affirmed that “the right of

confrontation conferred by the Sixth Amendment” can trump

“[e]ven privileges recognized when the Constitution was writ-

ten,” viz., the attorney-client privilege. United States v. Rai-

none, 32 F.3d 1203, 1206 (7th Cir. 1994). And the Eleventh

Circuit thinks the same, having held in Jenkins v. Wainwright

that “limitations on questioning” based on the attorney-client

privilege are permissible only to the extent that the court “per-

mit[s] cross-examination sufficiently thorough to satisfy the

sixth amendment.” 763 F.2d 1390, 1392 (11th Cir. 1985); see

also Mills v. Singletary, 161 F.3d 1273, 1288 (11th Cir.

1998). Until the plurality wreaked havoc with our law, we

were a comfortable member of this group. Murdoch v. Castro,

365 F.3d 699, 702 (9th Cir. 2004). Many state courts have

also recognized that the attorney-client privilege may not pre-

vent effective cross-examination. Most significant of these for

our case is California, see pp. 9052-53 supra, but it is hardly

alone, see State v. Cascone, 487 A.2d 186, 190-91 (Conn.

1985); Neku v. United States, 620 A.2d 259, 262-63 (D.C.

1993). The plurality ignores these voices by relying on a sin-

gle footnote in an irrelevant Supreme Court case. If this is

what the “clearly established law” test requires, then AEDPA

did not limit habeas relief; it eliminated it.

d. The opportunity to cross-examine is particularly impor-

tant when it can “expos[e] a witness’ motivation in testify-

ing.” Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)

(internal quotation marks omitted). It’s all the more important

when that witness is an accomplice cooperating with the gov-

ernment. Lee, 476 U.S. at 541; see also Mayans, 17 F.3d at

1184; Burr, 618 F.2d at 587. And Van Arsdall holds—it

“clearly establishes”—that “cutting off all questioning about

9062 MURDOCH v. CASTRO

an event that the State conceded had taken place and that a

jury might reasonably have found furnished the witness a

motive for favoring the prosecution in his testimony” violates

a defendant’s right to confront the witness. 475 U.S. at 679;

see also Adamson, 291 F.3d at 612. ‘

Here, the state’s star witness wrote a letter that, according

to the prosecutor at trial, said “in sum and substance . . . that

Mr. Dinardo was coerced by the police into implicating defen-

dant Murdoch in this crime.” [TR 249] “A reasonable jury

might have received a significantly different impression of

[Dinardo’s] credibility” had they heard about it. Van Arsdall,

475 U.S. at 680. The trial judge denied Murdoch’s jury the

chance. That means Murdoch’s Sixth Amendment right to

confrontation was violated. Id.; Davis, 415 U.S. at 318. It

would be unreasonable to conclude otherwise.

When there has been a Confrontation Clause error, we

“cannot [consider] whether the witness’ testimony would

have been unchanged, or the jury’s assessment unaltered, had

there been confrontation; such an inquiry would obviously

involve pure speculation.” Coy, 487 U.S. at 1021-22. Harm-

lessness “must therefore be determined on the basis of the

remaining evidence.” Id. at 1022. Though the plurality pur-

ports not to reach this issue, there are rather large hints

throughout the opinion that Murdoch’s inability to cross-

examine Dinardo was no big deal. Nothing could be farther

from the truth.

Consider what the trial would have looked like sans

Dinardo. Murdoch has always steadfastly maintained his

innocence. No physical evidence has ever linked him to the

crime. Four witnesses from the bar testified, but only three

even vaguely recognized Murdoch. [TR 604] And they were

highly equivocal. One patron said: “It’s been 13 years. And

I can’t be positive.” [TR 625] Another could only say that

Murdoch looked “similar” to the gunman, because “it was so

many years ago.” [TR 550, 579] Though the plurality makes

MURDOCH v. CASTRO 9063

much of the bartender’s identification of Murdoch, pl. op. at

9029, she was shown Murdoch’s picture in a photo array

immediately after the robbery and didn’t recognize him. [TR

161] More than a dozen years later, she points to the only

defendant in the courtroom and is sure it’s him. Weak tea.

There was no way the prosecution could have gotten a convic-

tion without a miracle called Dinardo.

But don’t take my word for it; just see what the trial judge,

who presided both over Murdoch’s case and Dinardo’s, has to

say about it: “[U]nless the District Attorney has something

more, I just wonder without [Dinardo’s] assistance where

they’re going.” Appendix at 9069. [SER 363] He notes that

Murdoch’s prosecutors “have a very difficult case without

[Dinardo’s] assistance.” Id. [SER 363] That’s why the judge

wanted “to be able—that there would be some agreement that

might be beneficial to Mr. Dinardo and the prosecution.” Id.

at 9068. [SER 362] Just in case this was too subtle to move

Dinardo, the trial judge goes on to explain that he wants “to

do something different,” for Mr. Dinardo, rather than give

him the “set sentence” the law required upon conviction for

first degree murder. Id. at 9069. [SER 363] All of this was,

as he acknowledged, “not the judge’s province” and a matter

“actually between attorneys.” Id. [SER 363] But the trial

judge also wanted Dinardo to know that “I have 90 days to

change [your] sentence if anything changes in the way of your

mind” about testifying against Murdoch. Id. [SER 363] Dis-

graceful.

Denying Murdoch the right to confront Dinardo cannot

have been an error harmless beyond a reasonable doubt. If the

state courts held otherwise—which they didn’t—they unrea-

sonably applied law clearly established by the Supreme Court.

e. The court of appeal did not decide Murdoch’s constitu-

tional claim, so it’s unclear whether the harmless-error stan-

dard of Brecht v. Abrahamson, 507 U.S. 619, 631 (1993),

applies in place of the Chapman standard. See Fry v. Pliler,

9064 MURDOCH v. CASTRO

551 U.S. 112, 118-19 (2007). But it makes no difference. Just

as it would be objectively unreasonable to conclude that the

error in this case was harmless beyond a reasonable doubt, see

pp. 9062-63 supra, it’s obvious this error had a “substantial

and injurious effect or influence in determining the jury’s ver-

dict.” Brecht, 507 U.S. at 631.

The plurality suggests that Murdoch “succeeded in eliciting

testimony that challenged Dinardo’s credibility as a witness,”

so any error couldn’t have affected the jury’s verdict. Pl. op.

at 5. Even if that kind of argument could be made here, but

see Coy, 487 U.S. at 1022, there’s a huge difference between

routine impeachment for bias and specific evidence that a wit-

ness has admitted that his trial testimony is untrue and a prod-

uct of coercion from the get-go. The Supreme Court has long

recognized the extraordinary effect that a witness’s own

inconsistent statement can have on a jury. In a case addressing

confessions, the Court held that a defendant’s own inconsis-

tent statements are “probably the most probative and damag-

ing evidence that can be admitted against him.” Arizona v.

Fulminante, 499 U.S. 279, 296 (1991) (internal quotation

marks omitted). The same, of course, would have been true

for Dinardo. The letter was nothing less than a confession that

Dinardo had lied about the central matter of his testimony. No

only that, but the letter would have explained why Dinardo

was lying. It shows it wasn’t just the trial judge’s generous

deal. The police had pressured him from the outset.

Plea bargains are cut every day and jurors know it. A letter

like Dinardo’s comes along once in a lifetime. As Judge

Bright put it in his powerful dissent, “[t]he letter and its dis-

avowal of Murdoch’s involvement in the crime would have

been the pièce de résistance, leading inextricably to the con-

clusion 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.”

Murdoch, 489 F.3d at 1071. “The concluding question on

cross-examination of Dinardo seems obvious: ‘Were you

MURDOCH v. CASTRO 9065

lying then or are you lying now?’ ” Id. Forcing a witness to

admit to the jury that he’s a liar is the Holy Grail of cross-

examination. What Murdoch got instead was a paper cup.

Surely there must be grave doubt whether the jury would

have reached a different result if the letter had been admitted.

Murdoch is entitled to a new trial so that cross-examination—

the “greatest legal engine ever invented for the discovery of

truth,” Green, 399 U.S. at 158 (internal quotation marks

omitted)—can be allowed to do its work.

3. Procedural Default. Judge Silverman agrees that Mur-

doch was denied his right to confrontation, but refuses relief

because Murdoch’s trial counsel “never sought to strike

Dinardo’s testimony.” Concurrence at 9045. Judge Silverman

doesn’t contest that Murdoch argued on appeal that Dinardo’s

testimony should have been stricken. His problem with the

timing of Murdoch’s request must therefore sound in proce-

dural default rather than exhaustion. In other words, Judge

Silverman seems to think that, because Murdoch didn’t move

to exclude Dinardo’s testimony at trial, his objection came too

late—perhaps for failure to obey a contemporaneous objec-

tion rule or the like. State and federal law of procedural

default belie such a claim.

As far as Vela reveals, Murdoch requested at trial precisely

the remedy provided for under California law. Striking a wit-

ness’s direct testimony isn’t the only way California could

have observed the Sixth Amendment’s essential command.

Vela holds as a matter of state law that, if necessary to permit

effective cross-examination, California’s attorney-client privi-

lege “must give way.” 208 Cal. App. 3d at 150. That’s exactly

what Murdoch asked for at trial.

I also doubt whether the California courts would have held

Murdoch to any default, if default there was. California law

says that “[a] defendant is not precluded from raising for the

first time on appeal a claim asserting the deprivation of cer-

9066 MURDOCH v. CASTRO

tain fundamental, constitutional rights.” People v. Vera, 15

Cal.4th 269, 276-77 (1997); see also People v. French, 43

Cal.4th 36, 46-47 (2008). And even if the California courts

would ordinarily have held that Murdoch’s claim was proce-

durally defaulted, the trial judge’s conduct in this case might

have excused any default. See People v. Hill, 17 Cal.4th 800,

820-22 (1998). These uncertainties would make me think long

and hard whether, if California would hold that Murdoch

somehow procedurally defaulted his claim, that’s an “inde-

pendent and adequate” procedural bar to federal relief. Cf.

Townsend v. Knowles, 562 F.3d 1200, 1207-08 (9th Cir.

2009). I would also have to consider whether Murdoch can

excuse any default by showing cause and prejudice, particu-

larly in light of the trial judge’s conduct. Cf. Cook v. Schriro,

538 F.3d 1000, 1025-26 (9th Cir. 2008).

But I need not reach any of these difficult issues because

procedural default is “ ‘an affirmative defense, and the state

has the burden of showing that the default constitutes an ade-

quate and independent ground’ ” for denying relief. Scott v.

Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (quoting Insyx-

iengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005))

(emphasis in original). California didn’t argue to the district

court, and it hasn’t argued to us, that the state courts rejected

Murdoch’s Confrontation Clause claim on a procedural

ground (or even that they should have). Nor has the state

argued, as Judge Silverman would hold, that Murdoch was

required to request exclusion of the witness at trial and that

his failure to do so bars him from obtaining federal relief.

That’s the end of the road for any theory that Murdoch should

be denied relief because he didn’t ask for a particular remedy

from the state trial court. Chaker v. Crogan, 428 F.3d 1215,

1220-21 (9th Cir. 2005). Habeas courts do not scour the

record in search of every conceivable defect in a petitioner’s

presentation of a claim to the state courts. Vela is but one

example of why: What we might require to preserve a claim

is not always what the state courts would require. Compare

Concurrence at 9044-45 with Vela, 208 Cal. App. 3d at 151.

MURDOCH v. CASTRO 9067

California is satisfied with the procedural posture of this case.

We are in no position to disagree.

***

Today we become the only court in the country to hold that

a state court may adjudicate a constitutional claim “on the

merits” by overlooking it, and then have its carelessness

rewarded with AEDPA’s presumption that its adjudication

was good enough for government work. We defer to a deci-

sion the state courts never made to reach a result that the

state’s highest court disagrees with. We fail to give effect to

the plain meaning of the Confrontation Clause—one of the

best-established principles of Anglo-American law—on the

ground that it isn’t “clearly established.” Any one of these

errors would be remarkable, but their combination produces

a truly spectacular miscarriage of justice.

The purpose of AEDPA is to allow state courts to operate

in good faith. So, in the ordinary case, when a defendant has

an unbiased judge and the state courts take his constitutional

claims seriously, we must defer even if we disagree on the

merits. But this isn’t an ordinary case. The state trial judge

coerced a key witness into testifying and the state appellate

judges never addressed the key claim on appeal. Cases like

this are the reason federal habeas exists. When a federal con-

stitutional claim falls through the cracks of a state’s criminal

justice system, federal courts must be there to catch it. No one

else can. Charles Murdoch certainly deserved better from the

California courts. Ultimately, though, it is we who surely did

let him fall.

9068 MURDOCH v. CASTRO

MURDOCH v. CASTRO 9069

9070 MURDOCH v. CASTRO

MURDOCH v. CASTRO 9071

THOMAS, Circuit Judge, with whom MCKEOWN, Circuit

Judge, joins, dissenting:

As Judge Tashima has pointed out, the California Court of

Appeal referenced Murdoch’s Confrontation Clause argument

in its decision and discussed the attorney-client privilege in

quoting People v. Godlewski, 21 Cal. Rptr.2d 796, 800 (Ct.

App. 1993). Assuming, arguendo, that the last reasoned state

court opinion decided the Confrontation Clause argument on

the merits, and that our review is therefore not de novo, I

would still conclude that Murdoch is entitled to federal habeas

relief.

For the reasons articulated by Chief Judge Kozinski, the

California Court of Appeal decision was an objectively unrea-

sonable application of clearly established federal law, as

determined by the Supreme Court of the United States in a

long series of cases, including Crawford v. Washington, 541

U.S. 36 (2004), Davis v. Alaska, 415 U.S. 308 (1974), and

Douglas v. Alabama, 380 U.S. 415 (1965). Thus, I join parts

2(a)-(e) and part 3 of Chief Judge Kozinski’s dissent.