Appendix — Kurtz v. Ayers

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Supreme Cout, U6.

FILE®

x03 23 ZAUC 12 2003

Jn The

Supreme Court of the Anited States

ROBERT M. KURTZ,

Petitioner,

ROBERT AYERS, WARDEN,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals

For The Ninth Circuit

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI |

VOLUME II, PAGES 01-S3

WILLIAM E. GILG, ESQ.

Attorney at Law, #151991

305 San Bruno Avenue West

San Bruno, CA 94066

(650) 871-8647

(650) 873-3168 (fax)

Attorney for Petitioner

COCKLE LAW 3RIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

APPENDIX O

WILLIAM E. GILG

Attorney at Law, #151991

305 San Bruno Avenue West

San Bruno, CA 94066

(650) 871-8647

(650) 873-3168 (fax)

Attorney for Petitioner,

ROBERT M. KURTZ

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT M. KURTZ, ) Case NO.

Petiti ) CV F 97-6201 AWI SMS P

etitioner, <

- MEMORANDUM OF POINTS

: AND AUTHORITIES IN

ROBERT AYERS, SUPPORT OF PETITIONER’S

Warden and CAL OBJECTIONS TO MAGIS-

TERHUNE, Director ) TRATE’S REPORT AND

of California Depart- ) RECOMMENDATION

ment of Corrections, OF AUGUST 8, 2001

Respondent. ) [28 U.S.C. § 636] _

) US. Magistrate Judge

) Sandra M. Snyder

TABLE OF CONTENTS

TOPIC PAGE

Te GC a tik hs ckndae enisvainteniicivnseon Viii

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF PETITIONER'S OBJECTIONS

TO THE MAGISTRATE’S REPORT AND REC-

OMMENDATION OF AUGUST 8, 2001................ 1

OBJECTION #1: THE MAGISTRAT [sic] JUDGE’S

DISPOSITION FOR GROUND #1 OF THE FED-

ERAL PETITION IS INCORRECT ...................0...

GROUND #1: PREJUDICIAL VIOLATION OF

PETITIONER’S RIGHT TO EFFECTIVE ASSIS-

TANCE OF COUNSEL UNDER THE SIXTH

AND FOURTEENTH AMENDMENTS AND HIS

RIGHT TO DUE PROCESS (FIFTH AMEND-

MENT) DUE TO TRIAL COUNSEL SMITH’S

WANTON MISMANAGEMENT OF INFORMA-

TION COVERED BY THE ATTORNEY/CLIENT

FP aELY SE aTe CRE ivininisininnsaeoncspemeecudeenienmances

A. THE MAGISTRATE JUDGE INCORRECTLY

CONCLUDES THAT A SIGNIFICANT AND

UNAUTHORIZED BREACH OF THE ACP

BY A DEFENSE ATTORNEY IS NOT

“PRIMA FACIE EVIDENCE OF UNREA-

SONABLE OR INCOMPETENT ASSIS-

TANIE OF CARINE wxcccasssoresvonsecsevamnapinsee

1. THE LEGISLATIVE AND ETHICAL

STANDARDS AT AT [sic] ISSUE IN

GROUNDS #1 TO #3 OF THE FED-

Beads FOP Ee EOE oininensccnsritentennassenstagienbin

2. GIVEN THE PURPOSE OF THE

PRIVILEGE, A LAWYER WHO MAKES

SIGNIFICANT DISCLOSURES OF ACP

MATERIAL WITHOUT THE DUE CON-

SULTATION AND CONSENT FROM

HIS CLIENT IS PRESUMPTIVELY IN-

CA Be ONO shiny asec snsicneperittoncenieadicaemnnianss

B. PETITIONER WAS PREJUDICED BY THE

TESTIMONY ELICITED BY TRIAL COUN-

SEL FROM JERRY HAMILTON REGARD-

ING THE PRIVILEGED COMMUNICATIONS

OF JANUARY 12, 1993.......cccsccsessesstessesseesseen

O03

1. TRIAL COUNSEL’S ERRORS DURING

HIS CROSS-EXAMINATION OF JERRY

HAMILTON AT THE PRELIMINARY

IIIT isbn inwsonkensiedipiniatuienidadatsientaxseese

2. TRIAL COUNSEL’S EXAMINATION OF

JERRY HAMILTON AT TRIAL AND

THE RAMIFICATIONS THEREOF.... ....

3. FURTHER RAMIFICATIONS OF TRIAL

COUNSEL’LS [sic] INCOMPETENCE:

THE NEED TO EXPLAIN WHEN, HOW,

AND WHY PETITIONER CHANGED

IEEE disinsiivicienapiinaadvaniahsiicinandinteesatiee>

C. THE MAGISTRATE JUDGE IRRELE-

VANTLY RAISES THE DOCTRINE OF

WAIVER IN RELATION TO PETITIONER’S

TESTIMONY EXPLAINING WHY HE LIED

TO HIS ATTORNEY AND WHY HE DE-

CIDED TO TELL THE TRUTH .....................

D. THE MAGISTRATE JUDGE ERRONE-

OUSLY FRAMES TRIAL COUNSEL'S

ELICITATION OF ACP MATERIAL FROM

PETITIONER AS A TACTICAL CHOICE

WORTHY OF DEFERENCE. .....................0000

E. WHEREIN PETITIONE [sic] CONCEDES

TWO POINTS MADE BY THE MAGIS-

Tc narnsrsvinaasicessssonesnatnovsavessereevnnns

I i ssinastnakibnsiautishivansaiinasanenvinvenbebeasse

~ OBJECTION #2: THE MAGISTRATE JUDGE’S

DISPOSITION OF GROUND #2 IS INCORRECT...

GROUND #2: TRIAL COUNSEL’S UNPROFES-

SIONAL HANDLING OF CLIENT CONFI-

DENCES FRUSTRATED THE FORMATION OF

A MEANINGFUL ATTORNEY/CLIENT RELA-

TIONSHIP BY CAUSING PETITIONER TO

O04

BE LESS THAN CANDID WITH HIM IN SUB-

SEQUENT MEETINGS. THIS VIOLATED

PETITIONER'S SIXTH AND FOURTEENTH

AMENDMENT RIGHTS TO EFFECTIVE ASSIS-

TANCE OF COUNSEL AS CRUCIAL INFORMA-

TION RELATED TO GUILT, INNOCENCE, AND

PUNISHMENT WAS WITHHELD FROM SMITH

AND ULTIMATELY THE JURY.................ccceeeeee

A. THE MAGISTRATE JUDGE ERRONE-

OUSLY CONCLUDES THAT “THE CLAIM

FAILS BECAUSE THE COURT HAS

FOUND NO VIOLATION OF THE ATTOR-

NEY/CLIENT PRIVILEGE .....................seeeee

B. THE MAGISTRATE JUDGE SPURIOUSLY

AND IMPROPERLY CONCLUDES THAT

PETITIONER WAIVED HIS ACP WITH RE-

SPECT TO THE LOCATION OF SUSAN’S

C. THE MAGISTRATE JUDGE’S APPLICA-

TION OF THE ‘INEVITABLE DISCOVERY

DOCTRINE’ IS UNFOUNDED AND

COUNTER TO THE UNDISPUTED EVI-

DENCE IN THE RECORD ............... eee eee

D. THE MAGISTRATE JUDGE ERRONE-

OUSLY EQUATES GROUND #2 WITH

CASES IN WHICH A DEFENDANT HAD

COMPETENT COUNSEL, JUST NOT A

“MEANINGFUL RELATIONSHIP” THERE-

E. GROUND #2 WARRANTS APPLICATION

OF THE PER SE STANDARD OF REVER-

SAL ATTENDANT TO STRUCTURAL ER-

O05

OBJECTION #3: ATTORNEY SMITH’S HAN-

DLING OF PETITIONER'S PRIVILEGE CONSTI-

TUTED MALPRACTICE AND GAVE RISE TO A

CONFLICT OF INTEREST WHICH VIOLATED

PETITIONERS SIXTH AND FOURTEENTH

AMENDMENT RIGHTS TO EFFECTIVE ASSIS-

SE GF CPE ids ciscnessocnisniemnsnianninanedanatinn

A. TRIAL COUNSEL’S MISMANAGEMENT OF

ATTORNEY/CLIENT PRIVILEGED MATE-

RIAL DID CREATE NA [sic] ACTIONABLE

CONFLICT OF INTEREST ......................c00

SE TIES ssevcnsscssercvnucsaccesannpenscediieneinnentinias

GROUND #4: ATTORNEY SMITH’S STANDING

AS AN ADVOCATE FOR PETITIONER WAS

COMPROMISED BY HIS RELATIONSHIP TO

THE AGENCIES PROSECUTING PETITIONER

AND THE EXTENT TO WHICH SMITH WAS

BEHOLDEN TO THEM. THIS VIOLATED PE-

TITIONER’S RIGHTS TO EFFECTIVE AND

CONFLICT-FREE COUNSEL UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS

A. TRIAL COUNSEL'S ‘COZY’ RELATIONSHIP

TO THE PROSECUTION TEAM CONSTI-

TUTED A CONFLICT OF INTEREST ...........

OBJECTION #5: THERE IS A REASONABLE

PROBABiLITY THAT COUNSEL’S FAILURE

TO EXPOSE THE STATE’S FALSE MOTIVE

THEORY ALLOWED THE JURY TO INFER

Ee Ee BIE ninctiinningcncetnncsenninibanneniemiannas

GROUND #5: ATTORNEY SMITH WAS INEF-

FECTIVE FOR FAILING TO PRESENT OBVI-

OUS, READILY AVAILABLE EVIDENCE

NEGATING THE PEOPLE’S MOTIVE THEORY.

THIS VIOLATED PETITIONER’S SIXTH AND

FOURTEENTH AMENDMENT RIGHTS TO EF-

FECTIVE ASSISTANCE OF COUNSEL............... 38

A. THE MAGISTRATE JUDGE ERRONE-

OUSLY APPLIED THE HARSH JACKSON

v. VIRGINIA STANDARD IN THE PREJU-

DICE ANALYSIS ON GROUNDS #5, #6,

AND #7 — ALL OF WHICH ARE CLAIMS

UNDER STRICKLAND v. WASHINGTON .... 38

B. THE MAGISTRATE JUDGE’S PREJUDICE

ANALYSIS FOR GROUND #5 IS FLAWED... 42

C. THE MAGISTRATE JUDGE’S SECONDARY

EMPHASIS ON THE POTENTIAL LOSS OF

ACCESS TO PETITIONER’S SON IS MIS-

FRAIL IEEEP vexsereséscayihunetetnhetaetbienereuarnnaeiias 46

D. AN ACCURATE PORTRAYAL OF THE

Re Be CAF CRRIPRP RUE? OP crcsenccinrnscavenssasennvesane 48

E. THE CRUCIAL ROLE OF MOTIVE IN THE

CALJIC INSTRUCTIONS REGARDING

FIRST-DEGREE MURDER, PREMEDITA-

TION, AND DELIBERATION .....................00. 49

COIN VARESE sos 2sissthascenentneaeencemmnne 50

OBJECTION #6: THERE IS A REASONABLE

PROBABILITY THAT TRIAL COUNSEL’S

FAILURE TO PRESENT SUSAN’S ALANON

DIARY BROUGHT ABOUT PETITIONER’S

ORS Vis Bie ix erasissnsnsensnesvnanionciesneaeeneedebamseamanebaies 54

A. WAS TRIAL COUNSEL'S FAILURE TO

PRESENT SUSAN’S DIARY NEGLIGENCE? 54

1. WAS THE DIARY ADMISSIBLE?........... 54

2. DOES THE DIARY SHOW A WOMAN

FILLED WITH REPRESSED RAGE OR

A “REASONABLE ONE”? ..000... cece eeeeee 57

3. WAS THERE A PLAUSIBLE DOWN-

SIDE TO THE ADMISSION’ OF

SPRINT We ROMNITE F sncesecicuscrscciccionsssanacnssens 60

4. WERE THERE OTHER PITFALLS TO

ALLOWING THE JURY TO HAVE AC-

CESS TO THE DIARY?.......................0008 63

5. WHY IT IS UNREASONABLE TO AS-

SUME A “TACTICAL” EXPLANATION

FOR TRIAL COUNSEL’S FAILURE TO

RUGS SUE BPMNROEE F evecieguececscnessesnnosuneoenseree 63

B. RESPONDING TO THE MAGISTRATE

JUDGE’S REMARKS CONCERNING PRE-

PRPEPTAIEE evemiseuncctenvesovediedvisnsdsacseveoune eeneinanenenne 64

1. THE MAGISTRATE JUDGE’S OBSER-

VATION THAT SUSAN’S DIARY DOES

NOT EXPLAIN WHY SHE DID NOT

REACT IMMEDIATELY UPON FIND-

ENG THE DOUUBIEINE q..cccsscccrsessccvecsscees 64

2. THE MAGISTRATE JUDGE USED THE

WRONG STANDARD OF REVERSAL IN

RESOLVING GROUND 46................:0008. 65

3. THE MAGISTRATE JUDGE CON-

FLATES EVIDENCE DISPROVING SELF-

DEFENSE AND ESTABLISHING THE

COMMISSION OF A CRIME WITH EVI-

DENCE PROVING FIRST-DEGREE

MURDER - AND THUS WRONGFULLY

JUDGES THE ISSUE OF PREJUDICE

PIE PUNE OO vnccncensnunsncssqnesnacoeneonneuns 66

OBJECTION #7: GROUND #7 STATES A

COMPELLING BASIS FOR REVERSAL............... 70

GROUND #7: PETITIONER'S RIGHTS UNDER

THE SIXTH AND FOURTEENTH AMEND-

MENTS TO EFFECTIVE ASSISTANCE OF

COUNSEL AND RIGHT TO DUE PROCESS

(FIFTH AMENDMENT) WERE VIOLATED

WHEN TRIAL COUNSEL SMITH NEGLECTED

TO SEARCH A WALLET CONTAINING INAD-

MISSIBLE HEARSAY EVIDENCE LATER

BOUIED BY TEEIS JUIET «nc ccecccccocccccccesssccsseccccocscecs. 70

I acc ccecccncectesennn eee 73

OBJECTION 48: .......cccccccccccccccccccsscsssesesereeeeserereeeees 74

TRIAL COUNSEL WAS INEFFECTIVE IN FAIL-

ING TO REQUEST CALJIC NO. 8.73

GROUND #8: PETITIONER’S SIXTH AND FOUR-

TEENTH AMENDMENT RIGHTS TO EFFEC-

TIVE ASSISTANCE OF COUNSEL WERE

VIOLATED BY ATTORNEY SMITH’S FAILURE

TO REQUEST CALJIC NO. 8.73 [RELATING

EVIDENCE OF PROVOCATION TO THE DE-

GREED GE STEP MPUIIED ssticcnnserccrsecnesedcocesscneustinsesanene 74

OBJECTION #9: THE FAILURE TO INSTRUCT

ON CALJIC NO. 8.73 WAS PREJUDICIAL.......... 78

GROUND #9: THE TRIAL COURT COMMITTED

PREJUDCIAL ERROR AND DENIED PETI-

TIONER HIS FIFTH AMENDMENT RIGHT TO

DUE PROCESS AND HIS CONSTITUTIONAL

RIGHT TO A JURY TRIAL IN FAILING TO IN-

STRUCT THE JURY IT COULD CONSIDER

PROVOCATION IN DETERMINING THE DE-

RED BERTI seciccsceneveseccsenninnsesonaveneanerscentan 78

A. THE MAGISTRATE JUDGE ERRED BY

SECOND-GUESSING THE CALIFORNIA

COURT OF APPEAL ON A MATTER OF

THE INTERPRETATION OF STATE LAW.... 78

B. THE MAGISTRATE JUDGE ERRED IN

SECOND-GUESSING THE CALIFORNIA

COURT OF APPEAL’S FACT-FINDING RE-

GARDING TRIAL COUNSEL'S STRATEGY...

C. THE MAGISTRATE JUDGE’S PREJUDICE

ANALYSIS FOR GROUND #9 IS FLAWED...

1. THE GOVERNING UNITED STATES

SUPREME COURT JURISPRUDENCE..

2. CALIFORNIA’S UNREASONABLE AP-

PLICATION OF THE CONTROLLING

FEDERAL STANDARDB...............00000s0008

EE SEED sasncccecsencenssnovevenscnececngccssianessonsines

THE MAGISTRATE JUDGE ERRED IN DECID-

ING THAT THE EVIDENCE OF FIRST-

DEGREE MURDER WAS SUFFICIENT

GROUND #10: INSUFFICIENT EVIDENCE VIO-

LATED PETITIONER’S RIGHT TO DUE PROC-

ESS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS BECAUSE EVIDENCE WAS

NOT SUFFICIENT BEYOND A REASONABLE

DOUBT TO SUPPORT HIS FIRST DEGREE

REFER Fee GIN E VEE BIMIEN cv ccccneccesecscvsecasebressecossovees

GPM ctccscecvcnsortvirecns ceccnasestascenncsnctens

EEE TEES ccisnesnascdseccesevncsensnbeossesseseensouvesevees

THE MAGISTRATE JUDGE FAILED TO CON-

DUCT APPROPRIATE CUMULATIVE ERROR

ANALYSIS

ET EEE TOE sescocessovesepencoccasoccsncsossocssevensorsesoete

PETITIONER WAS ENTITLED TO DE NOVO

REVIEW ON FEDERAL GROUNDS #1

THROUGH #7 NOTWITHSTANDING TITLE 28

010

OF THE UNITED STATES CODE, SECTION

2254(d)

CONCLUSION (TO ALL OBJECTIONS)... 91

TABLE OF AUTHORITIES

STATUTE PAGE

a ee TI acticin iatieisiesthercetinnicassetasnediseniieeasniatinaindunmenaieal 3,5

ee ee bicksiinenenepunicecnionbes vecenenacntaansiaisonenien 56-57

ee silence rcs dances nccctnspaeeanidueisieeleedieeetncoieonnesct 56

a ie te III xs ceiseisebsesencacrcaecsd ina reeaceiacteepsaceamaneraomoencbaicecesunes 4

PE Se aisirccascuteanprsdacssa imuncnbarsonentguiaeisaandin cata eubbchadsices 5

Se cakes each csiceat nner wosencedn sahroda cae rtencdabcanctckienee 5

Ne a I ncurses senate davased iostidsaeiibnedntciasieasbeissislsenpucswens 4-5

Se I ih ei stiiccasheeliceartctiihiinten tescgdasintancsnivinpencemesvens 4

UN ne Ail INN attac dulecicerensan uilccdb cies ciiccuinccusieelalidseieonnevavnbiveinaboeies 56

Ne ey SI sacs icin cauintnncnhesiticnstnaniehieu ubliumensanminniasicies 72

ee ND cai caren iclocadechs vias cies caesticalcaasi asin ssneumée enn siesseiosebicee 19

eT: Oe IE crassiasitasavaphalhissnbampntonninscenniiavinniadneels 90-91

ee al Se Se aiccinttinvenscseneisicniereeinskeciabeesesecsies 76, 84

Fe Sr ssasperrenensnisdscescisenshnvinsssvnevdisnscbakedéoecsenl 81

Be Ps Be RE seccstevinvnvarsecvinvsnrssensonsessncenssevevons 43-44

CASE PAGE

Aponte v. Gomez (9th Cir. 1993)

SN cic icalihins is Sika bsaoeininei punted dbstinssvekounvodediainnciiaebes 79

Bains v. Cambra (9th Cir. 2000)

FS ER aR eae a ae a ae ee a 83

O11

Benge v. Superior Court (1982)

ee I a issn chien eiicnkiin Lobia ticksnnscxiensodbecchlobiceesdedaets 5

Bland v. California Department of Corrections

(9th Cir. 1994)

ITE INTs Sica sacle hale sesso ghesstenebacievlinoeoasalaietaenionces 43

Brecht v. Abrahamson (1993)

507 U.S. 619, 123 L.Ed.2d 353,

Ns Bi ciesnnnice esta Dicnecetnidesssnscnsessevarneneeoes 33, 71, 83

Brewer v. State (Tex.Cr.App. 1983)

TIN a ios eunsipsictamaPunseumanennved ecascesss 38

Burnside v. State (Fla.App. 1995)

A ieee 38

Coleman v. Thompson (1991)

501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546....... 18, 31

Fischer v. United States (1976)

425 U.S. 391, 48 L.Ed.2d 39, 96 S.Ct. 1569......... 7, 33-34

Frazer v. United States (9th Cir. 1994)

SA Seen sieeglidbivemababilacanincasesecssaauens 32

Harris v. Wood (9th Cir. 1995)

SRE SNe Ta 90

In re Darr (1983)

ee EE I inc slain cd sccsannnensrnnscsenbiddeiainbandesanenteneel 25

In re Winship (1970)

397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068.............0... 82

Jackson v. Virginia (1979)

443 U.S. 307, 61 L.Ed.2d 560,

Si MN hd diet ee Ne 39-40, 65, 71, 88

Jones v. Barnes (1983)

463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308................ 3

Lockhart v. Terhune (9th Cir. 2001)

Se Pe MR crasnccnssacecormcebceutecncair ae ee 25

O12

Lopez v. Sculley (2nd Cir. 1995)

SE i sartscowsentaniepleciintalacnaiiceedissealeemale 35

Lowrey v. Cardwell (9th Cir. 1978) |

Ee FE itindivnitimniniiniminddipaaadan ane 2, 34

Mak v. Blodgett (9th Cir. 1992)

BF Fe Oe ichitisieisinsttitichicenanonicnanmeneeae 90

McMann v. Richardson (1970)

SOT Te. TOR, Oe A BEE oritteriniccciicntinmeimeneee 31

Maness v. Meyers (1975)

419 U.S. 449, 42 L.Ed.2d 574, 95 S.Ct. 584.0... 8

Mannhalt v. Reed (9th Cir. 1988)

OE Be ts derinivtsnrssniscreioveivenseacerenenadameaaammee 25

Morris v. Slappy (1983)

IE SRS Bh tiearsttarssiaacsnemisiensenieniienaaaaeee 30

Murray v. Carrier (1986)

476 U.S. 478, 91 L.Ed.2d 397, 106 S.Ct. 2639............... 39

Neder v. United States (1999)

527 US. 1, 144 L.Ed.2d 35, 119 S.Ct. 1827...............008 82

O’Neal v. McAninch (1995)

513 U.S. 432, 180 L.Ed.2d 947, 115 S.Ct. 992............... 73

Oxborrow v. Eikenberry (9th Cir. 1989)

Oe Fe ee csrikcscsintecsevissnieiantteatditieentemmemeae 79

Peltier v. Wright (9th Cir. 1994)

BS Fe iki biintnichinninnnennanaaee 79

People v. Ceja (1994)

Be CR RIG FG cetiiisnriciintesitemmmnniimeiaannaaal 85

People v. Clark (1993)

Ce Ie i biisiinnitadcascinenionsitiepiiensieemeaaaemaae 25

People v. Hill (1992)

FEE Ge vikssiviecbiinincivcn rn minimemmaaeeee 57

O13

People v. Johnson (1993)

Neen iicninasennsssncnssecescoseesses 78-79

People v. Lee (1994)

i sccdeendieeseresvsesesvoesvecssseeees 78-79

People v. Middleton (1997)

Neen ee ciicswensosaessesesveccsscnsscsseess 78

People v. Pope (1979)

Neen ccctssecencnecceseveanscnsscssecers 37

People v. Romero (1992)

Neen lcacsnecssnseeesscressessecsseee 37

People v. Romero (1994)

Neen ee eee ars ersncsssecessevstecsevoncesees 37

People v. Shuey (1975)

Neen i crcncsaesencvesesesvesesessseess 80

People v. Watson (1956)

Nee aii chcasisnersecseneewesecscssecccsenee 83

People v. Williams (1971,

SEITE TT 92

Rickman v. Bell (6th Cir. 1997)

Neen icccncnsvsscssensesesessenssess 23, 33

Schell v. Witek (9th Cir. 2000)

EET en 25, 37-38, 75, 81

Schlup v. Delo (1995)

513 U.S. 298, 130 L.Ed.2d 808, 115 S.Ct. 851......... 38-39

State v. Johnson (Utah App. 1991)

Neen eee ccs sc sensnsvonevescosesesececes 38

Strickland v. Washington (1984)

466 U.S. 668, 80 L.Ed.2d 674, 104

S.Ct. 2052....... 2-3, 8, 17, 24, 32, 40, 42, 65, 71, 74, 89-90

Sullivan v. Louisiana (1993)

508 U.S. 275, 124 L.Ed.2d 182, 113 S.Ct. 2078............. 33

O14

Tally v. Ganahl (1907)

I Rls Mee acusnisacaanezaneunexciiveiecacasleaneaiaeinaeidaseaig 80

Tanner v. United States (1987)

483 U.S. 107, 97\L.Ed.2d 90, 107 S.Ct. 27839................. 70

Townsend v. Sain (1963)

372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. '745...........cc.0cc0008 38

Turner v. Duncan (9th Cir. 1998)

Se i iiccnarcteciccite vvataicerdasaaiiusalickectenielabaananel 90

United States v. Cronic (1984)

466 U.S. 648, 80 L.Ed.2d 657, 104 S.Ct. 2039....22-24, 33

United States ex rel Barnard v. Lane (7th Cir. 1987)

ee Oe Fe ntassnssreiccecsnnssenepa idan nanan 75

United States ex rel Wilcox v. Johnson (3rd Cir. 1977)

SR er SE ir tt icncon cele ccdecasteccanconaiecdteandaheeshiaueacoaacianalaeenae 2, 34

United States v. Marin (N.D. Ill. 1985)

Ce FE, Be ieicentiidciceintaninnamumennaen 38

United States v. Mejia (9th Cir. 1995)

Ae i ccnemesissdncndcsa aetna eden 29

United States v. Mezzanatto (1995)

513 U.S. 196, 1380 L.Ed.2d 697, 115 S.Ct. 797............... 19

United States v. Rosner (2nd Cir. 1973)

485 F.2d V21B.........esssscorsrosessseresossorosoosscnssecesesversssoene yas 7

United States v. Shorter (7th Cir. 1995)

ee ca lilciccestenccenidancicdacd hddiaei den maaenteee 35

United States v. Sites (9th Cir. 1995)

ee re i cacociciecsncircd cetestbideecancdnndceasaaieana as 25

United States v. Washington (9th Cir. 1986)

TE Fe EE keris RAS se Ra ade al aren Bo» 25

United States v. Ziegenhagen (7th Cir. 1989)

I Fe ee tins ici esse ae 25

O15

United States v. Zolin (1989)

491 U.S. 554, 105 L.Ed.2d 469, 109 S.Ct. 261S.............. 7

Upjohn v. United States (1981)

449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677............. 6, 33

Weatherford v. Bursey (1977)

429 U.S. 545, 51 L.Ed.2d 30, 97 S.Ct. 837................. 7,33

OTHER AUTHORITY PAGE

Sixth Amendment.............. 1-3, 24, 33-34, 38, 54, 70, 74, 96

ee sic ins cdacesm penn mednnaninaeeneabtebiadabesiehons 78, 86

14th Amendment ....................06 1, 24, 34, 38, 70, 74, 86, 96

a Si FP FO ee iia cri crcsmsicnccstsnccerecemcnnveninncions 56

SE BG FEE Gikbicicchierirnnteneiicesneentanicectnces 50-51, 88

Be PO TR EF dissin shtcenieesnncenionerenonaannanianeenneenncapen 85

Ce Bie Bi iracttierevitereteetieine ieee 67

Cre Bs BE ie ctcasecetrorniccoesmnemmcrnecrcounicins 49-51, 83-84

i Nocatee nce 77

Ce FRR. I i biteermien annem 77

SI: MINE cachsectncasicoeenbis neh oeranbadenecrmaanmeaieaanee 84-85

ee A ssi iconcesercviwarenvevnieetensunianeeaueces staan 74

SI, ie FB secthirsd ceistensdidivnsnecoreneneiaerarntonesronenionenosens 74

sy Bi eats nbaiticsscaebvaienietesenincaenrendeigesnaemunee 74

CALJIC No. 8.73............. 51, 74-75, 77-78, 80, 82, 83-85, 87

RING? BY FTE taisicdsrrietertinnincntntineremiamnnsiees 74

Jefferson’s California Evidence Benchbook ion Ed.

BEE 0 ES sitereictinrnnnntneaeinmon 56

Jefferson’s California Evidence Benchbook (3rd Ed.

Be ee Os ale iteisisariisetneelceccninarineamiens 56

O16

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LexisNexis, California Criminal Defense Practice,

Liebman & Hertz, Federal Habeas Corpus Practice

and Procedure (3rd Ed. 1998) §§ 26.2d, fn. 26, 33,

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and Procedure (3rd Ed. 1998) § 20.2c, fn. 47........... 43

ABA Compendium of Professional Responsibility

Rules And Standards, Model Rules of Prof. Con-

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WILLIAM E. GILG a"

Attorney at Law, #151991

305 San Bruno Avenue West

San Bruno, CA 94066

(650) 871-8647

(650) 873-3168 (fax)

Attorney for Petitioner,

ROBERT M. KURTZ

O17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT M. KURTZ, ) Case NO.

——_ ) CV F 97-6201 AWI SMS P

etitioner,

™ MEMORANDUM OF POINTS

—_ AND AUTHORITIES IN

ROBERT AYERS, ? SUPPORT OF PETITIONER'S

Warden and CAL ) OBJECTIONS TO MAGIS-

TERHUNE, Director ) TRATE’S REPORT AND

of California Depart- ) RECOMMENDATION

ment of Corrections, OF AUGUST 8, 2001

Respondent. ) [28 U.S.C. § 636]

) US. Magistrate Judge

) Sandra M. Snyder

OBJECTION #1

THE MAGISTRATE JUDGE'S DISPOSITION

FOR GROUND #1 OF THE FEDERAL

PETITION IS INCORRECT

GROUND #1: PREJUDICIAL VIOLATION OF PETI-

TIONER’S RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS AND HIS RIGHT TO DUE PROCESS

(FIFTH AMENDMENT) DUE TO TRIAL COUNSEL

SMITH’S WANTON MISMANAGEMENT OF INFORMA-

TION COVERED BY THE ATTORNEY/CLIENT PRIVI-

LEGE (ACP)

O18

THE MAGISTRATE JUDGE INCORRECTLY

CONCLUDE THAT A SIGNIFICANT AND

UNAUTHORIZED BREACH OF THE ACP BY A

DEFENSE ATTORNEY IS NOT “PRIMA FACIE

EVIDENCE OF UNREASONABLE OR

INCOMPETENT ASSISTANCE OF COUNSEL”

The Magistrate Judge begins her analysis of the attor-

ney/client privilege (ACP) violations based on Grounds #1,

#2, and #3 of the Petitioner’s Second Amended Federal

Petition with this observation:

Petitioner alleges that Trial Counsel violated the

attorney-client privilege and thus violated the

Sixth Amendment right to counsel. However,

while a violation of attorney-client privilege, if

proven, may be a violation of ethical canons, it is

not prima facie evidence of unreasonable or in-

competent assistance of counsel. [footnote 5]

5. Petitioner does not cite, nor can this

Court find any statement of law which

holds, that counsel has an affirmative duty

to inform his client of the protections of at-

torney/client privilege before seeking con-

sent to disclose the privileged information.

(R&R of 8/8/01, p. 13(7-11).)

Actually, there ee cases whose holdings are directly

on point:

It is essential to our adversary system that a cli-

ent’s ability to communicate freely and in confi-

dence with his counsel be maintained inviolate.

When an attorney unnecessarily discloses the

confidences of his client, he creates a chilling

O19

effect which inhibits the mutual trust and inde-

pendence necessary to effective representation.

(United States ex re. Wilcox v. Johnson (8rd Cir. 1977) 555

F.2d 115, 122; Lowrey v. Cardwell (9th Cir. 1978) 575 F.2d

727, 730-732.) Moreover, the Magistrate Judge’s reasoning

is inconsistent with one of the central teachings of Strick-

land v. Washington (1984) 466 U.S. 668, 80 L.Ed.2d 674,

104 S.Ct. 2052. In that case the Supreme Court held that

ineffective assistance of counsel was defined as conduct

unreasonable under “prevailing professional norms”. (Jd.

466 U.S. 688.) “[P]revailing professional norms” are the

very “ethical canons” which the Magistrate Judge insists

can be violated without giving rise to any adverse infer-

ence. Again, from Strickland we have:

When a convicted defendant complains of the in-

effectiveness of counsel’s assistance, the defen-

dant must show that counsel’s representation fell

below an objective standard of reasonableness. ]

More specific guidelines are not appropriate. The

Sixth amendment refers simply to “counsel”, not

specifying particular requirements of effective

assistance. It relies instead on the legal profes-

sion’s maintenance of standards sufficient to justify

the law’s presumption that counsel will fulfill the

role in the adversary process that the Amendment

envisions.” (emphasis added)

(Strickland v. Washington, supra, 466 U.S. at 687-688.)

The interplay of “ethical canons” and the analysis of an

attorney’s effectiveness is well illustrated in Jones uv.

Barnes (1983) 463 U.S. 745, 752-753 [notes 5 to 6 and

related text], 77 L.Ed.2d 987, 103 S.Ct. 3308.

020

THE LEGISLATIVE AND ETHICAL STANDARDS

AT ISSUE IN GROUNDS #1 TO #3

OF THE FEDERAL PETITION

Under California Business and Professions Code

section 6068(e), trial counsel had a duty to “maintain

inviolate the confidence, and at every peril to himself...

to preserve the secrets, of his or her client.” The American

Bar Association’s (ABA) Ethical Cannon 4 provides: “A

lawyer should preserve the confidences and secrets of a

client”. The ABA’s Ethical Consideration EC4-4 provides in

pertinent part: “A lawyer owes an obligation to advise the

client of the attorney-client privilege and timely to assert

the privilege unless it is waived by the client.” (See Exhibit

#1 to these Objections.) A well known and respected treatise

on California Criminal Practice describes the proper

procedure to follow in the initial client interview:

Perhaps the most important objective of the initial

interview Is to establish the proper attorney-client

relationship. The Attorney must strive to develop a

climate of trust by explaining The attorney-client

privilege, pointing out that a successful outcome

Requires that the attorney know all the facts,

and conducting The interview in a manner that

inspires confidence and trust.

[ ] However, the attorney must make it clear that

-the or she is in charge of the defense and of trial

tactics and strategy, while emphasizing that the

client will be kept fully informed as the case pro-

ceeds.

(emphasis added)

O21

(LexisNexis, California Criminal Defense Practice, §1.13(2Xb),

p. 1-36.11.) (See Exhibit #2 to these Objections.) Addition-

ally, referring to California Evidence Code sections 953 to

955, trial counsel would have learned that control of the

ACP is vested in the client — not the attorney. “A lawyer

who... received... a communication that is subject to the

lawyer/client privilege has a duty to claim the privilege

whenever he ... is present when the communication is

sought to be disclosed, unless the holder of the privilege no

longer exists or instructs the lawyer otherwise.” (emphasis

added) (Jefferson’s California Evidence Benchbook (3rd. Ed.

1997) §40.7.) Evidence Code section 955 makes it mandatory

for the lawyer to claim the privilege for the client whenever

the lawyer is present at a court proceeding in which the

disclosure is sought. Jd. at §40.23.) Waiver of the disclo-

sure of privileged information occurs “if any holder of the

privilege ... has consented to such disclosure.” (Evid C

§912(a).) “Consent to disclosure is manifested by any

statement or other conduct of the holder of the privilege

indicating consent to the disclosure... .” (Ibid.) In short,

an express waiver must be obtained by the lawyer from his

client. (Benge v. Superior Court (1982) 131 Cal.App.3d 336,

345 [the attorney, unless instructed otherwise, must make

the claim].) Also very instructive on this issue is ABA

Compendium of Professional Responsibility Rules and

Standards, Model Ruies of Prof. Conduct (1998) §1.6,

which provides in pertinent part:

(a) A lawyer shall not reveal information relat-

ing to representation of a client unless the client

consents after consultation, except for disclosures

that are impliedly authorized in order to carry

out the representation, . . . . (emphasis added)

(See Exhibit #3 to these Objections.)

O22

An attorney is not defined in the above-cited statutes

as a holder of his client’s privilege. Thus, he must seek his

client’s consent to make a disclosure. Informed by Evi-

dence Code sections 953, 954, and 955, an attorney must

understand that attorney/client confidences are the

inalienable property of his client. They do not fall within

the purview of the attorney’s tactical or strategic fiat.

Properly chastened by, Business and Professions Code

section 6068(e), any competent attorney would be extraor-

dinarily scrupulous about securing the express and fully

informed consent of his client before making any disclo-

sure. To do otherwise in any substantial way is not only

' gravely unethical, it is unlawful. (B& PC §6068(e); 1

Witkin, California Procedure Attorneys (4th Ed. 1996)

§§315-321 [breach of the obligation may give rise to a

malpractice claim].)

Thus, contrary to the Magistrate Judge’s assertion, a

violation of the attorney/client privilege is prima facie

evidence of unreasonable and incompetent assistance of

counsel — that is, unless the Court is saying that a viola-

tion of explicit, mandatory statutory law and their sup-

porting professional standards may be competently and

reasonably undertaken.

GIVEN THE PURPOSE OF THE PRIVILEGE

A LAWYER WHO MAKES SIGNIFICANT

DISCLOSURES OF ACP MATERIAL WITHOUT

THE DUE CONSULTATION AND CONSENT FROM

HIS CLIENT IS PRESUMPTIVELY INCOMPETENT

The attorney/client privilege (ACP) is not some furbe-

low on the attorney/client relationship. The United States

023

Supreme Court has described the privilege as indispensa-

ble to the formation and preservation of what is considered

an attorney/client relationship in America:

The attorney-client privilege is the oldest of the

privileges for confidential communications known

to the common law.... Its purpose is to encour-

age full and frank communication between at-

torneys and their clients and thereby promote

broader public interests in the observance of law

and administration of justice. The privilege rec-

ognizes that sound legal advice or advocacy

serves public ends and that such advice or advo-

cacy depends upon the lawyer’s being fully in-

formed by the client. As we stated last term... :

‘The lawyer-client privilege rests on the need for

the advocate and counselor to know all that re-

lates to the client’s reasons for seeking represen-

tation if the professional mission is to be carried

out’... . [W]e recognize the purpose of the privi-

lege to be ‘to encourage clients to make full dis-

closure to their attorneys.’ This rationale for the

privilege ....’ is founded upon the necessity, in

the interest and administration of justice, of the

aid of persons having knowledge of the law and

skilled in its practice, which assistance can be

safely and readily availed of when free from the

consequences or the apprehension of disclosure.”

(emphasis added)

(Upjohn Co. v. United States (1981) 449 U.S. 383, 389, 66

L.Ed.2d 584, 101 S.Ct. 677.)

In United States v. Zolin (1989) 491 U.S. 554, 562, 105

L.Ed.2d 469, 109 S.Ct. 2619 the United States Supreme

Court emphasized “the centrality of open client and attorney

communication to the proper functioning of our adversary

024

system of justice”. (emphasis added) “[P]rivacy of commu-

nication with counsel” has also been described as “the

essence of the Sixth Amendment right.” (United States v.

Rosner (2nd Cir. 1973) 485 F.2d 1213, 1224 cert denied 417

U.S. 950.)

In Weatherford v. Bursey (1977) 429 U.S. 545, 554,

fn. 4, 51 L.Ed.2d 30, 97 S.Ct. 837, the High Court noted

with approval that the U.S. Attorney General had twice

conceded that “the Sixth Amendment’s assistance-of-

counsel guarantee can be meaningfully implemented only

if a criminal defendant knows that his communications

with his attorney are private and that his lawful prepara-

tions for trial are secure against intrusion by the govern-

ment... .”. (emphasis added)

In Fisher v. United States (1976) 425 U.S. 391, 403, 48

L.Ed.2d 39, 96 S.Ct. 1569, the High Court put it bluntiy:

“(I]f the client knows that damaging information could

more readily be obtained from the attorney following

disclosure than from himself in the absence of disclosure,

the client would be reluctant to confide in his lawyer and

it would be difficult to obtain fully informed legal advice.”

Thus it would be the height of incompetence for an

attorney to openly flout the attorney/client privilege. Any

competent attorney would recognize, as the United States

Supreme Court most definitively does, that such behavior,

quite beyond being malpractice, would hazard the total —

and justified — estrangement oi his client.

By saying that a significant breach of the attorney/

client privilege is “not prima facie evidence of unreason-

able or incompetent assistance of counsel”, the Magistrate

Judge is steering the law into unchartered waters. An

Pieces: Sioa AR Sete

025

attorney is intended to function as an assistant whose

interests are transparently aligned with those of his client:

From counsel’s function as assistant to the de-

fendant derive the overarching duty to advocate

the defendant’s cause and the more particular

duties to consult with the defendant on important

decisions ... .” (emphasis added)

(Strickland, supra, at 466 U.S. 688.)

Counsel’s actions are usually based, quite prop-

erly, on informed strategic choices made by the

defendant and on information supplied by the de-

fendant. (emphasis added)

(Id. at 466 U.S. 691.)

The need for the consultation regarding proposed

disclosures of attorney/client privilege — as well as the

scope of that privilege — is obvious: “A layman may not be

aware of the precise scope, the nuances, and the bounda-

ries of [a testimonial privilege].” (Maness v. Meyers (1975)

419 U.S. 449, 466, 42 L.Ed.2d 574, 95 S.Ct. 584.)

In light of the relevant U.S. Supreme Court authority,

statutes, and ethical canons, to suggest that an attorney

may spontaneously toss about crucial and vitally incrimi-

nating client confidences without so much as a ‘by-your-

leave’ is utterly indefensible. It suggests that an attorney

can thumb his nose at the law, treat his client as a mere

object to which he unilaterally applies his professional

judgment — a sort of idiot whose confidence is utterly

dispensable — and proceed utterly heedless of the defen-

dant’s Fifth Amendment rights, all because he is the

“attorney of record”. How can it not be deemed terribly

incompetent and thoroughly unreasonable for an attorney

026

to ignore the theoretical underpinnings of an effective

attorney/client relationship, as defined by the U.S. Su-

preme Court and relevant law? Consequently an open,

significant, and unexplained violation of the privilege is

prima facie evidence of ineffective assistance of counsel. It

can be nothing else. Such an offense is far more grave than

the failure to investigate or to call a witness. It does not

strike at the root of effective assistance of counsel, it fully

uproots the relationship. It is the difference between one

who drives against traffic on the freeway and one who,

though driving in the right direction, neglects to signal a

lane change. The former is out of his mind, the latter has

just failed to perform his duty perfectly. The former is

betraying the most fundamental rule of the road, the

latter may be just absent minded.

PETITIONER WAS PREJUDICED BY THE

TESTIMONY ELICTED BY TRIAL COUNSEL

FROM JERRY HAMILTON REGARDING

THE PRIVILEGED COMMUNICATIONS

OF JANUARY 12, 1993

The Magistrate Judge assumes “without finding” that

Trial Counsel was incompetent in eliciting testimony from

Jerry Hamilton regarding the statements mad by Peti-

~ tioner to his attorney on January 12, 1993. (See R&R, p.

18(24-25), p. 19(19-20).) However, the Magistrate Judge

insists that Petitioner was not prejudiced by this presump-

tive incompetence. (Ibid.) The Magistrate Judge arrives at

this conclusion by pointing out that Petitioner’s story

about having “found Susan dead in the garage from

apparent suicide” would still have come out through the

027

testimony of other witnesses, specifically, Petitioner’s

mother and Reed Harris. (See R&R, p. 19(25-28).)

The Magistrate Judge mistakes the claim. Petitioner’s

prejudice theory revolves around the fact that the jury

learned through Jerry Hamilton — and Jerry Hamilton

alone — that Petitioner had lied to his own attorney, that

is, by relating the false suicide/rafters story that Petitioner

had also used to explain Susan’s death to Kathy Hamilton

and Reed Harris. The best way to understand Petitioner’s

theory of prejudice is to start with the defense attorney's

cross-examination of Jerry Hamilton and to follow the

relevant events through to their logical conclusion in the

prosecutor’s closing argument.

TRIAL COUNSEL'S ERRORS DURING HIS

CROSS-EXAMINATION OF JERRY HAMILTON

AT THE PRELIMINARY HEARING

Prior to Attorney Smith’s cross-examination of Mr.

Hamilton at the preliminary hearing, all that Hamilton

had said about Petitioner’s statements about his wife’s

fate was that Petitioner had told him prior to the attorney

meeting of January 12, 1993, that Susan was dead. (See

CT of 2/16/93 at CT 15(16-20).) It was during cross-

examination by Petitioner’s attorney that facts were

elicited from Hamilton that Petitioner had told his attor-

ney that his wife had committed suicide. (See CT 21(22)-

22(25).) Obviously, this was a privileged communication —

and the Magistrate Judge does not say otherwise. But, the

truly consequential fact, is that the information was

elicited by Petitioner’s attorney and not the prosecutor.

028

TRIAL COUNSEL'S EXAMINATION OF

JERRY HAMILTON AT TRIAL AND

THE RAMIFICATIONS THEREOF

Unfortunately, Attorney Smith’s penchant for reveal-

ing his client’s secrets had not run its course before trial.

When Jerry Hamilton testified during trial, Smith again

led the charge to question him about his recollection

concerning the attorney/client conference of January 12,

1993. (See RT 123(22)-125(3).) In light of the apparent

waiver of the privilege, the prosecutor on redirect elicited

that Petitioner had told Smith where the body was and

that Susan had committed suicide. (RT 133(18)-134(7).)

Later in the trial Hamilton was recalled to the stand and

Smith expanded the scope of the privileged facts divulged

to the jury. Under Smith’s questioning, Mr. Hamilton

testified that Petitioner “may have” told Smith that he

found Susan hanging from the rafters in the garage and

that Petitioner did tell Smith that he found Susan on the

floor beneath the rafters. (RT 445(3-11).)

The disclosure of this scenario in no way helped

Petitioner. (See, e.g., testimony of George Marsh, at RT

317(22)-318(11) [Susan’s father’s testimony that the story

of Susan committing suicide was ludicrous].)

The coroner conclusively ruled out death by hanging.

(RT 345, 422-423.) Also, there was testimony about the

dust on the garage rafters being undisturbed. (RT 432-

433.) Petitioner’s own testimony was likewise inconsistent

with the suicide/rafters story. (RT 724-748.)

The brunt of this series of unprofessional errors began

to be felt by Petitioner during his testimony in the defense

case. Trial counsel knew that-his client had abandoned the

029

suicide/rafters explanation for his wife’s death. Nonethe-

less, he had allowed the jury to learn that Petitioner had

told him the suicide/rafters story at the outset of the

attorney/client relationship. This created a rhetorical

problem. Before he could have his client tell the truth, he

first had to explain how and why his client had abandoned

_ the false suicide/rafters story. The upshot of these consid-

erations was that, barely a minute into the direct exami-

nation, Attorney Smith had Petitioner admit that he had

lied to Smith. (RT 684(12-13).) Later, in the direct, Smith

asked Petitioner to tell the jury why he had lied to Smith.

(RT 778(9-12).)

Predictably, during closing argument, the prosecutor

leveraged the windfall of privileged information that he

had been handed into a stunning attack on the bonafides

of Petitioner’s testimony:

Well, come February at the preliminary hearing,

he learns different. This isn’t a suicide, it is not a

hanging. The physical evidence is incompatible

with his second lie so he has had six months to

think about his third one and you have heard it

here, Friday and yesterday. The way he has

craftily lied throughout this case reminds me of

the saying I generally don’t quote, but there is a

saying that says, ‘Oh, what a tangled web we

weave, when we practice to deceive’. That quote

was made hundreds of years ago, I believe, but

you’d think that the author had this man in (

(RT 902(25)-903(8).)

Later in his summation the prosecutor remarked that

Petitioner had lied to everyone, even “to his own attorney.

... But now he would have you believe that he’s telling the

truth. He is not. He’s lying to you.” (RT 944(22-26).)

030

Doubtless, the jury saw Petitioner’s inability to tell his

own lawyer how Susan had died as the ultimate proof that

Petitioner’s story of accidental and unintentional homicide

was bogus.

Petitioner had testified that his wife died on January

4, 1993 as a result of an unpremeditated fight between the

two of them. (RT 700-778.) There were no other witnesses

to the crime presented. The prosecutor’s case consisted

primarily of evidence suggesting a consciousness -f guilt,

and thereby, presumably, of premeditated and deliberate

murder, that could be gleaned from Petitioner’s state-

ments and conduct between January 4, 1993 and January

12, 1993. Defense counsel Smith correctly observed on -

more than one occasion that “virtually 75 percent of [the

prosecutor’s] case has been on the issue of [Petitioner’s]

dishonesty”. (RT 540(6-8); see also RT 927(156), 937(24)-

938(4).)

Petitioner testified that his wife’s death was unin-

tended and unpremeditated. (RT 778-779, 783(23-24), 784(8-

13), 800(7-12).) A reasonable person considering Petitioner’s

story of accidental death in light of Petitioner’s “lies” to his

attorney would be likely to conclude that Petitioner’s lies

to his attorney were evidence that Petitioner had in fact

premeditated the crime. It is far easier to write off Peti-

tioner’s lies to friends and family, (see, e.g., prosecutor’s

cross of Petitioner at RT 787-831), as no more than evi-

dence that Petitioner could not cope with facing them and

telling them the level of responsibility he had in Susan’s

death, than it is to believe such an explanation when

it comes to his lies to his attorney. If it was accidental,

albeit at his own hands, why not tell his own attorney?

Withholding the unsavory truth from relatives is under-

031

standable, but to withhold exculpatory “truth” from one’s

own advocate, is another matter entirely.

The prosecutor saw Petitioner’s lies to his own attor-

ney as the cowp de grace for Petitioner’s credibility. He

argued as much to the jury. (RT 944-945.) He had a point.

FURTHER RAMIFICATIONS OF TRIAL

COUNSEL'S INCOMPETENCE: THE NEED

- TO EXPLAIN WHEN, HOW, AND WHY

PETITIONER CHANGED HIS STORY

Like a chain of dominoes falling, each additional

privileged communication led to the elicitation of another,

until the entire course of Petitioner’s relationship to his

counsel had, willy-nilly, been exposed.

Since Attorney Smith had (without conceivable profes-

sional justification) allowed the jury to learn that Peti-

tioner had told him the same story he had fobbed off on

the police and public, Smith was drawn, nearly inexorably,

to expose the circumstances under which Petitioner had

first come forward with the story he ultimately told the

jury. Immediately after Smith had Petitioner admit to the

jury (for the second time) that he had lied to Smith at the

January 12, 1993 conference, Petitioner was asked by

Smith to describe what caused him “to admit that [he was]

responsible for her death after months of lying?” (RT

779(10-11).) Smith knew that this question would elicit

privileged material. Petitioner explained the circum-

stances of the admission at trial in this way:

A. [By Petitioner]: “.... the final straw [in

admitting I was responsible came] in that meet-

ing that we had together, you [i.e., Smith] had

032

indicated to me that given the facts in this case

and what I had said... . wasn’t very plausible.

Q. At that meeting, did you tell me what hap-

pened?

A. No.

Q. When did — how long after that meeting did

you come to me?

A. The next day.

(RT 779(20)-780(2).)

Smith then led Petitioner through a series of ques-

tions establishing that Petitioner had never admitted his

responsibility for Susan’s death prior to the January 12,

1993 Attorney/client conference. (RT 780.) The prosecutor

on cross-examination made predictable use of the scope of

_Smith’s ever widening waiver of his client’s privilege in his

devastating passage:

Q. You met with your attorney and he told you

that if you maintained this story of suicide,

you were going to go down on first degree

murder. And he told you to think about that

and you did, and now we have this story

you've related here in court.

Mr. Smith: Again, Your Honor, object, misstat-

ing the testimony of the witnesses.

The Court: Sustained.

Mr. Kams: Q. Did your attorney sit down with

you and tell you that your story of suicide

wasn’t going to wash?

A. Not in those words.

Q. In-—in words to the effect?

033

Yes.

And he told you to think about it?

No.

i a

Well, it was at some point after that discus-

sion, was it not, that this story surfaced

about this struggle in the house?

A. That’s correct.

(RT 786(7-25).)

Later, the prosecutor savaged Petitioner’s credibility

with these questions:

Q. When you did tell Mr. Smith, you told him

that she had committed suicide?

A. That’s correct.

Q. And it wasn’t until he sat you down and said

that that wasn’t going to wash that your

story changed?

Mr. Smith: Your Honor, I am going to object to

the form of question. I think it’s misleading

the evidence.

The Court: Sustained. Rephrase.

Mr. Kams: Q. When you met Mr. Smith, you

didn’t tell him that you had had this strug-

gle and she accidentally was killed?

A. No.

Q. In fact, you told him about this suicide.

When you talked to him about the suicide,

did you say she was hanging from the raf-

ters?

034

A. Idon’t recall.

Q. You don’t recall what you told your lawyer

when you first met him and told him about

your wife’s death?

A. No.

(RT 814(7-25).)

However, the prosecutor was not finished exploiting

the advantages offered by the scope of Smith’s direct:

Q. Isn’t it a fact that — strike that. At the

preliminary hearing, back in February, you

heard the testimony of Doctor Gopal regard-

ing the medical evidence in this case?

A. Yes, I did.

Q. And you heard him say at that time that

this was not a hanging, not a suicide. Do you

recall that?

A. Yes.

Q. And isn’t it true it was after that point in

time that you decided to say that, yes, you

were involved in her death but it was this

accidental killing?

A. It might have been after that, yes.

(RT 828(23)-829(8).)

Strangely enough on direct, Smith seemed only to be

concerned about rehabilitating himself and set about using

Petitioner to do so — without the slightest concern for

Petitioner’s privilege:

Q. Now, a question was asked in words to the

effect that after some point in time when

035

you — you changed your story, that you were

talking to your lawyer and, uh, that your

lawyer suggested that you had to change

your story in some way.

A. That is not true.

Q. And did I ever, from the time I first was con-

tacted by you, did I ever ask you whether

you were guilty of this crime?

A. No, which kind of surprised me.

Q. And did I ever in — in the month of July, let

you know that the story you had given me

was not matching up with the evidence and

the facts?

A. You had indicated that to me indirectly.

Q. Okay. And was it in such a way to cause you

to believe — cause you to believe that I did

not believe your story?

A. Iconsidered that as a possibility, yes.

Q. And did I ever teil you what your story

should be or tell you anything that you

would suggest you should lie to this Court

and jury?

A. Never.

(RT 843(14)-844(9).)

That it was Smith’s concern for his own reputation —

and not for the light in which his client would be viewed

that provoked these questions — is made clear by remarks

Smith made in his summation. (See RT 924(20) — 926(2)

[Smith expresses umbrage at the prosecutor’s imputation

that he wold coach Petitioner to lie and points to

036

Petitioner’s testimony (as referenced in the quoted mate-

rial above) as proof that he did not].)

The jury never should have heard “word one” of what

transpired between Smith and Petitioner on January 12,

1993. If they had not, Petitioner would not have been left

floundering in an attempt to explain why he changed his

story. The jury should never have learned that Petitioner’s

own lawyer indirectly intimated to Petitioner that his

story did not wash. Such an opinion, was itself manifestlv

privileged. (See Benge v. Superior Court (1982) 131

Cal.App.3d 336, 345 [the attorney/client privilege includes

a lawyer’s uncommunicated impressions and conclusions

concerning the case].)

Smith’s efforts did no more than vindicate himself in

the eyes of the police and the prosecutor from the imputa-

tion that he had suborned Petitioner’s trial testimony. (See

RT 941(26)-942(6) [prosecutor apologizes to Smith for

insinuating that he would coach a witness].) Shot to rags

by the tag-team questioning of Petitioner by Smith and

the prosecutor, was even the remotest possibility that the

jury would perceive Petitioner as having been motivated

by a spirit of honesty (and the advice of others to tell the

truth) to make the admissions that he made at trial.

Smith’s conduct with respect to Petitioner’s privilege

was an unmitigated fiasco for the defense. There is a

reasonable likelihood that the impact of Smith’s unethical

and incompetent conduct as described above affected the

outcome of the case. (See Strickland v. Washington, supra,

466 U.S. 694.)

037

THE MAGISTRATE JUDGE IRRELEVANTLY

RAISES THE DOCTRINE OF WAIVER IN

RELATION TO PETITIONER'S TESTIMONY

EXPLAINING WHY HE LIED TO HIS ATTORNEY

AND WHY HE DECIDED TO fELL THE TRUTH

The Magistrate Judge remarks:

Petitioner is correct that the substance of these

statements [i.e., “about the circumstances lead-

ing up to his testimony at trial”] were privileged

communications. However, by testifying about

these statements Petitioner tacitly, if not ex-

pressly consented to waive the privilege. It was

Petitioner’s right and decision to take the stand,

and he makes no allegations of coercion concern-

ing this choice.

(R&R, p. 20(14-18).)

This observation is not on point. The issue presented

is whether counsel’s questioning on the topic fell below

prevailing professional norms — not the legal ramifications

of Petitioner’s answers. Assuming arguendo that waiver

occurred, it assuredly arose from trial counsel’s incompe-

tence and must therefore be “seen as an external factor [to

the defendant], i.e., imputed to the State.” (Coleman v.

Thompson 1991) 501 U.S. 722, 754, 115 L.Ed.2d 640, 111

S.Ct. 2546.)

Moreover, Petitioner’s sworn assertions to the effect

that trial counsel never counseled him regarding the ACP

and that all of counsel’s actions in disclosing ACP material

were unexpected thrusts, precludes any determination

that the disclosures were knowing waivers of the privilege.

(See ABA Ethical Consideration 4, California Criminal

038

Defense Practice, §1.13(2)(b), ABA Rule 1.6, Exhibits #1,

#2, and #3, respectively, to these Objections.) Nor, for the

Same reason, were they voluntary. What exactly was

Petitioner supposed to do when trial counsel started to pry

into privileged matters while Petitioner was testifying,

assert the privilege in front of the jury? The circumstances

were inherently coercive. Petitioner’s conduct does not

amount to waiver. (Cf. United States v. Mezzanatto (1995)

513 U.S. 196, 205, 210-211, 130 L.Ed.2d 697, 115 S.Ct. 797

[in context of FRE Rule 410, waiver must be knowing and

voluntary]; Liebman & Hertz, Federal Habeas Corpus

Practice and Procedure (3rd Ed. 1998, Lexis Press)

§§26.2d, fn. 26, 33, 34, 39 [discussing preconditions to

waiver]; see also Exh. #1 to P& A in support of Second

Amended Federal Petition [Petitioner’s declaration re he

did not understand the precise nature and scope of the

privilege].)

THE MAGISTRATE JUDGE ERRONEOUSLY

FRAMES TRIAL COUNSEL'S ELICITATION

OF ACP MATERIAL FROM PETITIONER AS A

TACTICAL CHOICE WORTHY OF DEFERENCE

Petitioner has already established that it is not within

the purview of a defense attorney’s strategic and tactical

function to unilaterally disclose his client’s confidences.

(See supra, pp. 1-21.) Thus, the Magistrate Judge’s analy-

sis of whether there was any conceivable benefit of coun-

sel’s “unorthodox” (R&R, p. 21(8-12)) defense miscarries. It

is no more relevant to speculate as to what possessed

counsel to exhibit all of his client’s dirty laundry than it

would be to try to understand why a bank robber needed

De Sy Pas PEE Te LR LBS 25 og Re hy Ped GRAS I FOE RR ay

039

the money. The controlling point is that both of them are

thieves, having no right to what they seized.

While largely irrelevant, it is nonetheless illuminating

to consider for a moment the tactical explanation that the

_ Magistrate Judge posits. She suggests that “Trial Counsel

put all of the lies on the table to lend credibility to this

‘clean breast’ theory”, i.e., the idea that Petitioner was

suffering from Post Traumatic Stress Disorder (PTSD) and

could not face the truth about his conduct until his condi-

tion improved. (R&R, p. 21(3-8).) This idea has nothing to

recommend it. If it had been trial counsel’s plan to weave-

these disclosures into a PTSD defense, why did he not

weave them into his examination of Dr. Hamm? (See RT

029-544, 552-557, 559-561.) Why is there not a single line

in trial counsel’s closing argument that proposes to draw

the Magistrate Judge’s inference from petitioner’s lies to

counsel? (See RT 904-941.) However, the most devastating

rebuttal to the Magistrate’s Argument is the historical

record. Petitioner’s explanation of how he came to tell the

truth was not consistent with a PTSD defense. He re-

sponded to Smith’s inquiries by Saying that “the final

straw” [in admitting his responsibility] came when Smith

indicated that what Petitioner “had said .... wasn’t very

plausible”. (RT 779(20)-780(2).) As noted the prosecutor

took hold of this club and beat the PTSD defense to smith-

ereens. (See RT 786(7-25), 814(7-25), 828(23)-829(8);

quoted, supra, pp. 9-21.) Petitioner’s declaration in sup-

port of the petition establishes that counsel did not alert

petitioner to this line of questioning before Petitioner took

the stand. (See Exh. #1 to P & A in support of Second

Amended Federal Petition.) Obviously, counsel would have

done better to ask these sort of open-ended ‘why’ questions

040

of his client privately before he let them fly in the court-

room. Any reasonable attorney, having heard Petitioner’s

scrupulously honest answers, would have just as scrupu-

lously avoided the subject in open court.

WHEREIN PETITIONER CONCEDES TWO_ -

POINTS MADE BY THE MAGISTRATE JUDGE

Petitioner intentionally does not object to the Magis-

trate Judge’s finding that the ACP did not cover his

statements to his mother and stepfather on the night of

January 11, 1993. (See R&R, pp. 15(4)-16(18).)

Petitioner does not object to the Magistrate Judge

finding that the Sixth Amendment did not attach until

after the morning consultation of January 12, 1993 be-

tween Petitioner and his trial attorney. (See R&R, p. 16-

17.)

CONCLUSION

The Magistrate Judge posits that full disclosure of the

history of Petitioner’s deceitfulness, including chapters of

that history which were privileged, supported the ‘PTSD

defense. (See R&R, pp. 20(19)-21(21).) However, this line

of defense was clearly not dependent on information

within the ambit of the ACP. The defense expert was able

to form and articulate his opinion without any reference to

the attorney/client disclosures. (See RT529-561 [testimony

of Dr. Hamm].) Moreover, in its most persuasive form, this

defense would have rested solely on Petitioner’s pre-arrest,

non-privileged, behavior. There was no need to expose the

pragmatic considerations rooted in trial counsel’s advice

‘

wb 8 sraaladiCRa a Seil etn ha Cet

041

that triggered, by Petitioner’s candid admission, the

decision to abandon the suicide pretense. (See RT 7 79-780,

786, 814, 828-829, 843-844.) Introducing the jury to the

fact that Petitioner reversed his field because — as the

prosecutor so deftly put it — his story “wasn’t going to

wash” (RT 786(15-16)), and the concomitant revelation

that neither contrition nor a free-standing desire for

atonement were the crucial factors leading to abandon-

ment of the suicide story, could only have provoked skepti-

cism and anger in the jury’s deliberations. Petitioner’s

pragmatic considerations do not fit in the PTSD defense.

Thus, the Magistrate Judge is incorrect in reasoning

that Petitioner’s lies to his attorney and his sudden

decision to abandon the suicide story were facts that

supported the defense theory. In fact, they were inconsis-

tent with it. The prosecutor saw that clearly. He pounded

away at the obvious inferences, both through his cross of

Petitioner and in closing argument. The only use that

defense counsel made of the privileged material that he

divulged was in the context of a rear-guard action that

became necessary because the whole matter detracted

from his credibility as well. The jury may well have

thought, as the prosecutor twice insinuated, that trial

counsel’s conduct in prodding his client to abandon the

suicide story — no matter how neutrally it was phrased —

was tantamount to the solicitation of perjury. (See RT

786(7-25), 814(7-25), 828(23), 829(8); see also 843(14)-

844(9), 924(20)-926(2) [Smith responds to imputation that

he intended to prod his client into fashioning a more

plausible story].)

The Magistrate Judge herself calls these disclosures

“unorthodox” — that is an understatement. (R&R, p. 21(8-

12).) One can search in vain for a parallel in decisional

042

law. Not only did counsel go beyond his lawful prerogative

in exposing these secrets without due consultation with

his client, but he provided the prosecutor a moral bully-

pulpit from which to deride Petitioner’s testimony of death

by accident.

Thus trial counsel’s conduct resulted in structural

trial error and prejudice must be presumed. (See United

States v. Cronic (1984) 466 U.S. 648, 654, fn. 11, 80

L.Ed.2d 657, 104 S.Ct. 2039 [describing the circumstances

of a constructive denial of counsel when the performance

of trial counsel is so inadequate that, [in effect, no assis-

tance of counsel is provided].) An interesting case with a

similar performance by its trial counsel [in relation to

Petitioner’s trial counsel] is Rickman v. Bell (6th Cir. 1997)

131 F.3d 1150, cert den. 523 U.S. 1132. In that case the

Sixth District Court of Appeals overturned a death penalty

conviction on the grounds of ineffective assistance of

counsel, holding that prejudice had to be presumed be-

cause of trial counsel’s “outrageous” performance. The

Rickman Court commented:

We find it simply incredible that the most dam-

aging images of Rickman came from his own

attorney. ... All of these outrageous tactics were

introduced by [trial counsel] himself.

(Trial counsel’s] behavior cannot be characterized

as legitimate trial strategy; no rational individual

could think that painting a picture of one’s client

even more frightening than the prosecution could

paint, would do anything other than doom his

client.

[What the lower court permitted to occur] was

nothing less than the evisceration of the right-

to-counsel that is guaranteed by the Sixth

Ee EEN SS Sa Sidi lsl SOA Da Wea og oad

043

Amendment and as much a travesty for our en-

tire judicial system as it is for Rickman individu-

ally. The display of Rickman’s trial, if allowed to

stand, would simply mock fundamental constitu-

tional guarantees of “vital importance”... . [The

Supreme Court’s] recognition that “the right to

counsel is the right to the effective assistance of

counsel, ... would be devoid of meaning were

counsel like [trial counsel] deemed effective.

(emphasis added)

(Id. at 1159-1160.) In Petitioner’s case, trial counsel

painted him as a worse liar than the prosecution. The fact

that Petitioner had lied to his family and his own attorney

was brought out by trial counsel himself, just as in Rick-

man. This cannot be characterized as legitimate trial

strategy. Affirming Petitioner’s conviction would mock the

sanctity of the attorney/client privilege and the Sixth

Amendment right to the effective assistance of, counsel.

Prejudice must be presumed. Petitioner’s conviction

cannot stand.

In any event, even if this Court does not presume

prejudice, there~is prejudice a plenty. As the California

Court of Appeal explained, Petitioner’s credibility was the

‘lynch pin’ of the prosecution’s case. (See Respondent’s

Answer, Exh. #5, pp. 11-13 [CCOA’s opinion].) Trial coun-

sel’s offering of testimony that Petitioner had lied to his

family and his own attorney about the circumstances of

Susan’s death was the “most damaging images” of the

Petitioner’s credibility that were brought out at trial. (See

Rickman, supra, at 1159.) Hence either way one looks at it,

under the Cronic standard of presumed prejudice or under

the Strickland standard, Petitioner was denied his Sixth

amendment right to the effective assistance of counsel.

Petitioner’s conviction should be vacated.

044

OBJECTION #2

THE MAGISTRATE’S DISPOSITION OF

GROUND #2 IS INCORRECT

GROUND #2: TRIAL COUNSEL'S UNPROFESSIONAL

HANDLING OF CLIENT CONFIDENCES _FRUS-

TRATED THE FORMATION OF A MEANINGFUL

ATTORNEY/CLIENT RELATIONSHIP BY CAUSING

PETITIONER TO BE LESS THAN CANDID WITH HIM

IN SUBSEQUENT MEETINGS. THIS VIOLATED

PETITIONER’S SIXTH AND FOURTEENTH AMEND-

MENT RIGHTS TO EFFECTIVE ASSISTANCE OF

COUNSEL AS CRUCIAL INFORMATION RELATED

TO GUILT, INNOCENCE, AND PUNISHMENT WAS

WITHHELD FROM SMITH AND ULTIMATELY THE

JURY

THE MAGISTRATE JUDGE ERRONEOUSLY

CONCLUDES THAT “THE CLAIM FAILS BECAUSE

THE COURT HAS FOUND NO VIOLATION OF

THE ATTORNEY/CLIENT PRIVILEGE”

The Magistrate Judge reasons:

Insofar as this claim rises or falls upon Peti-

tioner’s prior arguments that there has been a

violation of the attorney-client privilege, this

claim fails because the Court has found no vicla-

tion of the attorney-client privilege.

(R&R, p. 22(9-12).)

The Magistrate Judge astutely observed that the

Sixth Amendment right does not attach until after the

commencement of adversarial proceedings. (See R&R, p.

16-17.) Petitioner concedes the point. Yet, Petitioner has

not conceded the issue of whether counsel’s disclosure

of the location of the body violated the attorney/client

City hile tetas Dae ets CS FS

045

privilege. The latter issue remains important because it is

well settled that the effectiveness of counsel can be com-

promised by counsel’s conduct before the attorney/client

relationship is formed. (E.g., Lockhart v. Terhune (9th

Cir.2001) 250 F.8d 1223, 1226-1228 [Attorney Hove’s

appointment to represent a third-party potentially liable

for crimes for which Lockhart was later arrested for, found

to the basis of a conflict of interest]; Mannhalt v. Reed (9th

Cir. 1988) 847 F.2d 576, 578-581, cert. den. 488 U.S. 908

[counsel rendered unfit re conflict via a commercial trans-

action that occurred between the two prior to the com-

mencement of the attorney/client relationship and the

adversarial proceeding]; People v. Clark ( 1993) 5 Cal.4th

950, 1001 [conflict arises from prior representation of

prosecution witness]; Jn re Darr (1983) 143 Cal.App.3d

500, 511-514 [same]; United States v. Washington (9th Cir.

1986) 797 F.2d 1461, 1464-1467 [if defense attorney had

previously had access to defendant’s files as an employee

of the Justice Department then conflict would exist bar-

ring future representation of defendant]; United States v.

Sites (9th Cir. 1995) 56 F.3d 1020, 1025, cert. den. 516 US.

1138 (counsel is disqualified from successively represent-

ing defendants with conflicting interests]; United States v.

Ziegenhagen (7th Cir. 1989) 890 F.2d 937, 940-941, af-

firmed 907 F.2d 152 [defense counsel previously appeared

against defendant at state sentencing hearing 20 years

earlier — subsequent representation of defendant im-

proper)).

These authorities amply demonstrate that an attor-

ney’s conduct before the commencement of adversarial

proceedings can render him unfit to represent a given

defendant.

046

THE MAGISTRATE JUDGE SPURIOUSLY AND

IMPROPERLY CONCLUDES THAT PETITIONER

WAIVED HIS ACP WITH RESPECT TO THE

LOCATION OF SUSAN’S BODY

The Magistrate Judge reasons that counsel was

neither unethical nor unreasonable in disclosing the

location of the body because he “presented [Petitioner]

with the opportunity to say ‘no’”. (See R&R, p. 17(19-27).)

Petitioner has several responses.

First, California Evidence Code section 912(a) says

that waiver of the attorney/client privilege requires a

holder’s consent. Petitioner’s declaration states that he did

not give his consent. (Exh. #1, para 8-16 in P&A in

support of Second Amended Federal Petition; see also

Ground #2, point 5 of Second Amended Federal Petition.)

Jerry Hamilton’s declaration is only to the effect that Trial

Counsel was on the phone with the police, that he cupped

his hand to the receiver, and said “should we tell them?” —

and that he did not hear any response from Petitioner.

(See Exh. #2, pp. 2-4, in P & A in support of Second

Amended Federal Petition.) Thus, there is no evidence of

consent. before the Court, quite the opposite. Essentially,

the Magistrate Judge is reaching a conclusion contrary to

the uncontradicted evidence before the Court. This is an

unreasonable shortcircuiting of the process. An eviden-

tiary hearing is required if the Court wishes to go beyond

the facts stated in the exhibits to the petition. (See Schell

v. Witek (9th Cir. 2600) 218 F.3d 1017, 1027.)

Second, this was a momentous occasion in the attor-

ney/client relationship. The Court, as should have been

true of Trial Counsel before it, must approach this issue

svi De Bate,

047

with greater sensitivity to the ramifications of trial coun-

sel’s rash and unilateral action. On the facts stated in the

declarations, trial counsel was utterly flippant in this

matter. On the same facts, his startlingly precipitous

disclosure struck his client as a betrayal. How would the

Court judge a divorce attorney in conference with a client

who gets the client’s spouse on the phone and discloses, in

the same flippant manner, the existence of an affair and

the location of hidden assets? How would any of us feel

about a banker who receives our deposit and then tucks

some of the money received into his or her lapel pocket —

or for that matter tosses the money into the air? This

claim cannot be defeated by the doctrine of waiver. Truly,

the issue of waiver is spurious to the claim. The focus

should be on counsel’s conduct. Was it within prevailing

professional norms? Is that a proper way to have a client

waive his ACP in such a momentous matter? Consider the

Fifth Amendment ramifications. This was a mortally

inculpatory move. Would any reasonable person, on the

facts sworn and before the court, ever think the same way

about sharing information with their lawyer again? Of

course not. That is the fundamental point.

Third, on two separate occasions during the trial,

Smith had witnesses describe to the jury the nature of the

phone calls that he had with the police on the morning of

January 12, 1993, (See RT 493-494 {[Schiotis]; RT 123-125

(J. Hamilton].) Smith also elicited testimony from Mr.

Hamilton on the subject during the preliminary hearing.

(See CT 23-24.) The telling factor to be noted in each of

these passages is that Smith did not attempt to elicit

testimony from either of these witnesses that Petitioner

had wanted Smith to reveal the location of Susan’s body to

the police, or that Petitioner had in any way consented to

048

the release of this information. (See RT 124(25)-125(3),

493(22)-494(6).)

Presumably Trial Counsel, that is, if he believed it to

be true, would have elicited from Mr. Hamilton, Petitioner,

or Det. Schiotis when any or all of them testified, that

Petitioner had either wanted to make this disclosure or

had consented to it. As it was, that is, in the version the

jury heard, the virtue of candor was vested in Smith and

not Petitioner. There is no conceivable tactical justification

for keeping from the jury evidence that Petitioner cooper-

ated with the most crucial aspect of the police investiga-

tion. This would have supported the “clean breast” theory

of the defense. (See & R, p. 21(6-7).) Thus, we must con-

clude that Smith’s conduct supports an inference that

Petitioner never gave his consent.

THE MAGISTRATE JUDGE’S APPLICATION OF

THE ‘INEVITABLE DISCOVERY DOCTRINE’ IS

UNFOUNDED AND COUNTER TO THE

UNDISPUTED EVIDENCE IN THE RECORD

The Magistrate Judge reasons thusly:

Finally, Petitioner cannot and has not shown

prejudice. Even if Trial Counsel had not disclosed

the location of the body to the police, as the police

were in the process of searching the house, and

they would have found the body anyway.

(R&R, pp. 17(28)-18(2).)

Petitioner alleged facts, which were not disputed by

Respondent, establishing that the police had essentially

finished searching the house when they received the

049

second, and portentous, call from trial counsel. (See Memo

of P&A in Support of Second Amended Federal Petition,

pp. 13(26)-14(3) & fn. 6; see also Traverse, p. 32(9-19).)

Second, the burden is on the government to prove

inevitable discovery by a preponderance of evidence.

(United States v. Media (9th Cir. 1995) 69 F.3d 309, 319.)

Having presented no evidence on the subject, merely

argument, it has essentially, conceded the point.

The Magistrate Judge also argues that Petitioner had

already “told his mother, stepfather, and AA sponsor Reed

Harris that he knew his wife was dead”. (R&R, p. 18(3-6).)

“He told Reed Harris that he had hidden the body.” (Ibid. )

This argument actually goes nowhere. To the extent that

the police did not discover the body when they searched

the house, they would assume upon receipt of any infor-

mation that Petitioner had hidden the body, that he had

done so at some location other than his house.

THE MAGISTRATE JUDGE ERRONEOUSLY

EQUATES GROUND #2 WITH CASES IN

WHICH A DEFENDANT HAD COMPETENT

COUNSEL, JUST NOT A “MEANINGFUL

RELATIONSHIP” THEREWITH

In the Magistrate Judge’s words:

The Sixth Amendment does not guarantee a

“meaningful relationship” between an accused

and his publicly appointed counsel, but merely a

right to competent counsel. Morris v. Slappy, 461

U.S. 1, 14 (1983). ... Petitioner is in error that

he has a constitutional right to a relationship of

trust and candor with his attorney, rather his

050

constitutional right is to competent representa-

tion, consequently prejudice cannot be presumed.

(R&R, p. 22(14-24).)

Petitioner is talking in Ground #2 about willful and

unethical conduct of an attorney which is inconsistent

with the way society has intentionally structured the

attorney/client relationship. When the United States

Supreme Court disparaged the petitioner’s position in

Morris v. Slappy by famously declaring that a defendant is

not entitled to a “meaningful relationship” with his attor-

ney, the intent was to conjure up the idiomatic connota-

tions of the phrase “meaningful relationship”. As we all

know, that phrase is often used to signify the sort of

relationship that exists between lovers. The phrase from

Morris v. Slappy is taken out of context if it is used liter-

ally. Because, a defendant is most certainly entitled to a

meaningful relationship with his attorney, that is, one that

is structurally sound, free of conflicting interests, and

adequate to vindicate a defendant’s legitimate rights and

interests within our adversary system. “(T]he right to

counsel is the right to the effective assistance of counsel.”

(McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14,

90 S.Ct. 1441.)

If trial counsel acted without suitable consultation

and consent from Petitioner in the matter of the disclosure

of the location of the body, during the attorney/client

conference of January 12, 1993, and by putting Petitioner

‘on the spot’ during his own testimony with questions that

required Petitioner to divulge his attorneys advice and

other ACP material, then trial counsel ‘meaningfuly’

crippled the attorney/client relationship — in ways that

were utterly predictable. Predictable that is, for anyone

oe As te

Mir AL es Maley Oh

SAGO ED Lat ETTORE Bb ALE me

051

versed in the law of, and justification for, the attor-

ney/client privilege. Presumably, that would include trial

counsel.

Thus, the Magistrate Judge’s observation miscarries.

True, the Constitution does not command that clients will

avail themselves of, and trust, the good faith of their

attorneys. True, the Constitution is~not violated when a

defendant idiosyncratically fails to be candid with his

attorney so long as the attorney has been faithful to his

professional end of the bargain, the vagaries of a client’s

state of mind are completely his own affair. But what do

these ideas have to do with the case at hand? The Magis-

trate Judge admits, in a classic understatement, that

Attorney Smith’s behavior was “unorthodox”. (See R&R,

p. 21(8-12).) It certainly was. When an attorney’s unortho-

dox behavior hazards his client’s trust, that conduct “must

.... be imputed to the State”. (Coleman v. Thompson,

supra, 501 U.S. at 754.) An attorney’s discretion does not

extend to discretion to reveal as he sees fit his client’s

secrets, In such matters, there is only one way: the ortho-

dox way, that is, to consult with the client and act on his

fully informed decision. The most basic way that an

attorney expresses his fidelity to his client, is in keeping

the relationship in confidence. And, “(t]he duty of loyalty

[is] perhaps the most basic of counsel’s duties”. (Strickland

v. Washington, supra, 466 U.S. at 692.)

052

GROUND #2 WARRANTS APPLICATION OF

THE PER SE STANDARD OF REVERSAL

ATTENDANT TO STRUCTURAL ERROR

The appropriateness of a per se standard of these facts

is underscored by the Ninth Circuit’s holding in Frazer v.

U.S. (9th Cir. 1994) 18 F.3d 778, 780, 785. In Frazer, it was

held that a section 2255 movant’s allegation that he was

coerced into agreeing to a bench trial on stipulated facts by

counsel’s threat to perform ineffectively at trial and by

counsel’s use of a racial slur, if proven at an evidentiary

hearing, were deemed to require reversal on ineffective

assistance of counsel grounds without inquiry into preju-

dice. The Frazer Court explained:

Such behavior completely destroys and negates

the channels of open communication needed for

the relationship to function as contemplated in

the Constitution.

(Id. at 785.)

In this matter, trial counsel essentially jumped track

and took his relationship with Petitioner outside of the

framework created by society to vindicate the Sixth

Amendment. This is not Petitioner’s fault. It is not Peti-

tioner’s fault that he reacted to trial counsel’s irresponsi-

ble behavior as the framers of the attorney/client privilege

would expect. (See Exh. #1, para 13-16, 18, 41, in P& Ain

support of Second Amended Federal Petition.) The with-

holding of vital information bearing on a client’s defense is

the law’s expected consequence of acts in derogation of the

attorney/client privilege. The Magistrate Judge’s reason-

ing is contrary to a solid wall of authority and must be

rejected.

eer

053

It is impossible to apply harmless error analysis to the

constitutional violation described in Ground #2. One

cannot assess what a “hypothetical jury” might have done

but for the error. One cannot discuss “what effect it had

upon the guilty verdict in the case at hand”. (Sullivan v.

Louisiana (1993) 508 U.S. 275, 279, 124 L.Ed.2d 182, 113

S.Ct. 2078.) It is not a trial error that can be processed

under Brecht v. Abrahamson standard. (See Brecht uv.

Abrahamson (1993) 507 U.S. 619, 123 L.Ed.2d 353, 113

} S.Ct. 1710). The ACP is central.... “to the proper func-

| tioning of our adversary system of justice”. (U.S. v. Zolin,

| supra, at 491 U.S. 562.) Respect of the privilege is vital “if

the professional mission is to be carried out.” (Upjohn v.

U.S., supra, at 449 U.S. 389.) The “sound[ness] [of] legal

advice ... depends upon the lawyer being fully informed

| by the client”. (Jbid.) “If the client knows that damaging

) information could more readily be obtained from the

) attorney. . . . [a] client would be reluctant to confide in his

, lawyer and it would be difficult to obtain fully informed

legal advice”. (Fischer v. U.S., supra, at 425 U.S. 403.) The

“Sixth Amendment’s assistance-of-counsel guarantee can

be meaningfully implemented only if a criminal defendant

knows that his communications with his attorney are

private . . .” (Weatherford v. Bursey, supra, at 429 U.S. 554,

fn. 4.) (emphasis added)

Ha NES GSE FRE Oe Eee Re Cea ee Oe Pee

These decisions compel the application of a per pre

standard of reversal of Ground #2. (See United States v.

Cronic, supra, at 466 U.S. 654-659; Rickman, supra, at

131 F.3d 1159-1160.) In any event, if prejudice is required,

there is a prejudice a plenty. (See Conclusion to Ground

#1, supra, at pp. 21-24.)

054

OBJECTION #3

GROUND #3: ATTORNEY SMITH’S HANDLING OF

PETITIONER’S PRIVILEGE INSTITUTED MALPRAC-

TICE AND GAVE RISE TO A CONFLICT OF INTER-

EST WHICH VIOLATED PETITIONER’S SIXTH AND

FOURTEENTH AMENDMENT RIGHTS TO EFFEC- :

TIVE ASSISTANCE OF COUNSEL

TRIAL COUNSEL'S MISMANAGEMENT OF

ATTORNEY/CLIENT PRIVILEGED MATERIAL DID

CREATE AN ACTIONABLE CONFLICT OF INTEREST

The Magistrate Judge’s ruling squarely conflicts with

the holding in United States ex re. Wilcox v. Johnson (3rd

Cir. 1977) 555 F.2d 115, 122:

It is essential to our adversary system that a cli- :

ent’s ability to communicate freely and in confi- ‘

dence with his counsel be maintained inviolate. |

When an attorney unnecessarily discloses the :

confidences of his client, he creates a. chilling ef-

fect which inhibits the mutual trust and inde-

pendence necessary to effective representation.

(emphasis added)

(See also Lowrey v. Cardwell (9th Cir. 1978) 575 F.2d 727,

730-732.)

The Magistrate Judge opines that “Petitioner has at

most established a potential, conflict” (R&R, p. 25(12-13))

and has failed to make the concomitant showing “that

counsel’s actions were unreasonable and prejudicial to his

defense.” (/d., p. 25(14-15).) dearly, the Third Circuit in

Wilcox held that the “unnecessary discose[ures] of confi-

dences of his client” creates a “chilling effect” between

055

attorney and client and thus in ‘actual’ — not a potential

conflict, stating that by virtue of such action the attorney

inhibits the mutual trust and independence necessary for

effective representation. (Jd. at 122; see also Lowrey,

supra, at 575 F.2d 730-732; Frazer, surpa, at 18 F.3d 781-

786; Rickman, supra, at 131 F.3d 1150, 1159-1160.) Thus,

no particularized showing of unreasonable or prejudicial

actions should be required.

Furthermore, the Magistrate Judge is incorrect in

asserting that there was no manifestation of the conflict

during the trial. Ground #2 of this federal petition de-

scribes the chilling effect that trial counsel’s actions had

upon the attorney/client relationship. Thus, trial counsel’s

malpractice was far more insidious than that described in

Lopez v. Sculley (2d Cir. 1995) 58 F.3d 38, 41 and United

States v. Shorter (7th Cir. 1995) 54 F.3d 1248, 1252-1253,

cert. den. 516 U.S. 896, which the Magistrate Judge seeks

to distinguish. (See R&R, pp. 24-25.) In both of those cases

the parties and the court had an opportunity to confront

the issue. Here, the corrosive and pernicious effects of the

conflict were masked by trial counsel’s failure to inform

Petitioner of his rights. Grounds #1 and #2 are a sufficient

showing of prejudice to justify reversal.

OBJECTION #4

GROUND 44: ATTORNEY SMITHS STANDING AS AN

ADVOCATE FOR PETITIONER WAS COMPROMISED

BY HIS RELATIONSHIP TO THE AGENCIES PROSE-

CUTING PETITIONER AND THE EXTENT TO WHICH

SMITH WAS BEHOLDEN TO THEM. THIS VIOLATED

PETITIONER’S RIGHTS TO EFFECTIVE AND CON-

FLICT-FREE COUNSEL UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS.

056

TRIAL COUNSEL'S ‘COZY’ RELATIONSHIP

TO THE PROSECUTION TEAM CONSTITUTED

A CONFLICT OF INTEREST

Here the Magistrate Judge asserts that Petitioner has

not proven that trial, counsel's “prior crimes put his

interest in direct conflict with Petitioner in this case”.

(R&R, p. 27 (9-10).) Assuming, arguendo, that this proposi-

tion is true, the Magistrate Judge has still incorrectly

adjudicated the claim. Petitioner’s showing is adequate

enough to justify a hearing. The Magistrate Judge con-

cedes that trial counsel’s handling of attorney/client

privileged materials was “unorthodox”. (R&R, p. 21(9-10).)

Juxtaposing trial counsel’s conduct and the irregularly

‘cozy relationship between trial counsel and the prosecut-

ing agencies and their representatives, a reasonable

explanation for said counsel’s bizarre handling of Peti-

tioner’s attorney/client privilege (ACP) comes into focus.

Why did counsel tell Detective Schiotis where the body of

Susan Kurtz lay without appropriate consent and consul-

tation with Petitioner? Why did counsel take such an

interest in demonstrating before the judge and jury who

heard this case that he was the good Samaritan that

provided the crucial tip to the police? (See Memo of P&A in

support of this Second Amended Federal Petition, p. 11-

12.) Why was trial counsel at such pains to prove through

Petitioner’s testimony, and at significant cost to Peti-

tioner’s credibility, the role trial counsel had played in

Petitioner’s about-face concerning the circumstances of

Susan’s death? (Id., pp. 22-26).) “Counsel may see in a

criminal case an opportunity to further personal or gen-

eral societal interests that are not those of the client.” (See

ABA Standard 4-3.5 for the Defense Function.) He may do

ve |

AE Saa SP Rath ines Lika ol Judea i anced ADM neal NaN? Powe Nn OE Paine atikdtaiihndaboi

ioc acca

057

no more than “negotiate with a particular prosecutor”.

(Ibid.) However such motives and conduct give rise to a

conflict of interest. (Ibid. )

Petitioner cannot offer direct proof of trial counsel’s

state of mind without having him on the stand and under

oath. In this regard, it is important to note that neither

Petitioner’s investigator, nor the California Appellate

Court were able to elicit from trial counsel any response to

Petitioner’s conflict of interest claim. As the Magistrate

Judge noted, the California Court of Appeal requested a

response to the allegations before this Court in the guise of

Grounds #1 through #6 on three occasions. Trial Counsel

did not even dignify its inquiries with notice of his inten-

tion not to respond. (See R&R, p. 2(19-22); Respondent’s

Answer, Exh. #3, pp. 26-26c & Appendix H.) The logical

inference is that trial counsel recognizes that his conduct

was unethical, unconstitutional, and indefensible. (See

People v. Romero (1992) 113 C.R.2d 332, 337, 339, reversed

on other grounds in People Romero (1994) 8 Cal. 4th 728

[counsel’s failure to provide explanation for conduct gives

rise to a presumption of “absence of a satisfactory explana-

tion”]; People v. Pope (1979) 23 Cal.3d 412, 426; State Bar

of California Formal Opinion No. 1992-127 [trial counsel

has an ethical duty to explain conduct upon request from a

former client even if to do so would admit ineffectiveness].)

In Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1020,

our Ninth Circuit ordered a hearing on a conflict claim

with no more to commend it than Ground #4. To deny

Petitioner a hearing is to adopt a rule that favors exactly

the sort of defense attorneys who are likely to have suc-

cumbed to a conflict, that is, those who neglect their

ethical duty to provide an explanation. Attorney Smith, an

alcoholic, who had an unusually cozy relationship with the

058

prosecuting agency and the personnel of that agency

which were involved in this case, who was a former police

officer and the Fresno County District Attorney, has

stonewalled the investigation into the “unorthodox”

behavior which is the basis of Ground #4 — a claim that he

could have easily debunked, if he could have done so

honestly, on any of the three occasions that the California

Court of Appeal made inquiries of him. If all of this, in

light of clear evidence of multiple “potential” conflicts does

not justify an evidentiary hearing, Petitioner is stymied.

To deny an evidentiary hearing in this case would be in

derogation of Townsend v. Sain (1963) 372 U.S. 293, 9 ~

L.Ed.2d 770, 83 S.Ct. 745. (See also Schell v. Witek, supra,

at 218 F.3d 1027.) |

It is well established that in circumstances where

defense counsel is beholden to or ‘cozy’ with the prosecu-

tion team, such a relationship may constitute a conflict of

interest. (Burnside v. State (Fla.App. 1995) 656 So.2d 241,

243-244; State v. Johnson (tah App. 1991) 823 P.2d 484,

486, 488-490; United States v. Marin (N.D. Ill. 1985) 630

F.Supp 64, 65-66; Brewer v. State (Tex.Cr.App. 1983) 649 :

S.W.2d 628, 630-632.)

Petitioner’s conviction should be vacated.

OBJECTION #5

THERE IS A REASONABLE PROBABILITY

THAT COUNSEL'S FAILURE TO EXPOSE THE

STATE’S FALSE MOTIVE THEORY ALLOWED

THE JURY TO INFER PREMEDITATION

GROUND #5: ATTORNEY SMITH WAS INEFFECTIVE

FOR FAILING TO PRESENT OBVIOUS READILY .

AVAILABLE EVIDENCE NEGATING THE PEOPLE’S

059

MOTIVE THEORY. THIS VIOLATED PETITIONER'S

SIXTH AND FOURTEENTH AMENDMENT RIGHTS

TO EFFECTIVE ASSISTANCE OF COUNSEL.

THE MAGISTRATE JUDGE ERRONEOUSLY

APPLIED THE HARSH JACKSON v. VIRGINIA

STANDARD IN THE PREJUDICE ANALYSIS ON

GROUNDS #5, #6, AND #7 —- ALL OF WHICH ARE

CLAIMS UNDER STRICKLAND v. WASHINGTON

The United States Supreme Court in Schlup v. Delo

(1995) 513 U.S. 298, 330, 130 L.Ed.2d 808, 115 S.Ct. 851,

(‘schlup’), compared the “probabilistic” standard of review

of Murray v. Carrier (1986) 476 U.S. 478, 91 L.Ed.2d 397,

106 S.Ct. 2639. (‘Carrier’), with the federal standard for

sufficiency of evidence claims under Jackson v. Virginia

(1979) 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781, (‘Jack-

son’). The Court’s remarks are pertinent to this Objection

because, the Carrier standard and the Strickland standard

are both “probabilistic standards” — as the Schlup Court

defined that term — while the Jackson standard is sui

generis. As the Schlup Court explained:

The Jackson standard, which focuses on whether

any rational juror could have convicted, looks to

whether there is sufficient evidence which, if

credited, could support the conviction. The Jack-

son standard thus differs in at least two impor-

tant ways from the Carrier standard. . . . Second,

and more fundamentally, the focus of the inquiry

is different under Jackson than under Carrier.

Under Jackson, the use of the word could focuses

the inquiry on the power of the trier of fact to

reach its conclusion. Under Carrier, the use of

O60

the word “would” focuses the inquiry on the

likely behavior of the trier of fact.

Indeed, our adoption of the phrase ‘more likely

than not’ reflects this distinction. Under Jackson,

the question whether the trier of fact has power

to make a finding of guilt requires a binary re-

sponse: Either the trier of fact has power as a

matter of law or it does not. Under Carrier, in

contrast, the habeas court must consider what

reasonable triers of fact are likely to do. Under

this probabilistic inquiry, it makes sense to have

a probabilistic standard such as ‘more likely than

not’.

The ‘clear and convincing’ standard adopted in

Sawyer reflects this same understanding. Thus,

though under Jackson the mere existence of suf-

ficient evidence to convict would be determina-

tive of Petitioner’s claim, that is not true under

Carrier.

(Schlup, supra, at 513 U.S. 330, fn. 49, 130 L.Ed.2d 838.)

(emphasis added)

Thus, if a Court conducts prejudice ana!vsis for a federal

claim that is governed by a “probabilistic standard” in

terms of whether, despite the claimed error, the jury could

still have convicted, that Court is engaged in the wrong

inquiry. Strickland v. Washington sets a “probabilistic

standard” for ineffective counsel claims, that is, one that

focuses on what rezsonable jurors would do — not what

reasonable jurors could do. From Strickland we have:

The result of a proceeding can be rendered unre-

liable, and hence the proceeding itself unfair,

even if the errors of counsel cannot be shown by

a preponderance of the evidence to have deter-

mined the outcome.

hike PRIA DnB CN al A IS Ee aN oti POS

DABS OOM DOE KEY Howes:

061

The defendant must show that there is a reason-

able probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would

have been different. A reasonable probability is a

probability sufficient to undermine confidence in

the outcome.

(Strickland, supra, at 466 U.S. 694.) (emphasis added)

Excerpts drawn from the Magistrate Judge’s Report

makes clear that the Jackson, standard rather than the

Strickland standard was applied to Grounds #5 to #7:

EXCERPTS FROM THE MAGISTRATE JUDGE'S

PREJUDICE ANALYSIS FOR GROUND #5

The prosecution’s theory could reasonably be in-

terpreted by the jury as calling into question Pe-

titioner’s ability to handle another failure, the

loss of his business a second time to a wife who

could no longer put up with his drug addiction.

(See R&R, p. 28(22-26).)

There was also more at stake than just the busi-

ness. There was the possibility that Petitioner

could lose custody of his son. Thus, even if Trial

Counsel had presented evidence of Petitioner’s

alleged financial independence, the jury could

still find the prosecution’s motive theory credible.

As Petitioner has failed to show prejudice, this

claim must fail. ([d., at p. 29 (1-5).) (emphasis

added)

EXCERPTS FROM THE MAGISTRATE JUDGE’S

DBAVULBIN 10 fa 1h ii eee

PREJUDICE ANALYSIS FOR GROUND #6

Even if the jury believed every word of Peti-

tioner’s testimony regarding his wife’s anger,

they could still have found him guilty of first de-

gree murder. ... The jury could reasonably have

O62

found that holding a computer cord around :

someone’s head or neck is highly likely to lead to {

strangulation and death. Additionally, the jury

could still have determined that during the

struggle Petitioner had the opportunity con-

sciously to choose between walking or running

away from the house and his upset wife or killing

her. They could reasonably have found that Peti-

tioner’s actions following the murder were evi-

dence of his consciousness of guilt. Finally, they

could have found that Petitioner, based on his

lies to family, friends, and police officers, was not

a credible witness and therefore did not believe

that this was an accident.

(R&R, pp. 31(24) — 32(12.) (emphasis added)

EXCERPTS FROM THE MAGISTRATE JUDGE’S

PREJUDICE ANALYSIS FOR GROUND #7

Therefore, [Petitioner] concludes, the jury must

have interpreted this receipt to mean that Susan

knew of Petitioner’s infidelities, and that de-

stroyed his credibility which led them to convict.

The jury therefore did not need to infer that she

knew of his contact with prostitutes. ... The jury

could therefore have determined that based on

her suspicions she decided to get tested....

Thus, exposure of the jury to this extrinsic evi-

dence did not necessarily incriminate Petitioner

or unduly influence their determination of guilt

or innocence. [ ] As discussed previously, even if

the jury believed Petitioner’s testimony that he

was only responding in kind to his wife’s rage,

the jury could still have found him guilty.

(See R&R, pp. 34(20) — 35(7).) (emphasis added)

Seen through the lens of the Strickland standard the

above excerpts almost .concede prejudice under Strickland

Pee ee ee ee ee a ee ee ee Se ee ae ee ee

]

063

for Grounds #5 and #6 and Brecht for Ground #7. With

respect to the excerpts drawn from the Magistrate Judge’s

disposition of Ground #5, it is apparent that under the

Magistrate Judge’s conception of the case, the proffered

evidence negating motive in the case would likely have

impacted the jury’s assessment of the strength and nature

of motive in the case, removing social shame, anger over

removal from the checking account, and the financial

motive, leaving only the possibility of the loss of custody of

his son.

THE MAGISTRATE JUDGE’S PREJUDICE

ANALYSIS FOR GROUND #5 IS FLAWED

The Magistrate Judge assumes “without deciding”

that trial counsel was ineffective in failing to present

evidence impairing the State’s motive theory. She confines

her argument to prejudice. (See R&R, p. 28(13-14).) What

then was the prejudice flowing from counsel’s presumed

incompetence?

The Magistrate Judge responded, in part, to Ground

#5 by refocusing the State’s motive theory. The Magistrate

Judge put greater emphasis on the idea that it was not the

loss of Petitioner’s business per se that troubled Petitioner.

As the Magistrate Judge put it:

The prosecution’s case also presented the theory

that it was not just losing the money and the

business but losing the money and business

again. The prosecution established through ques-

tioning, and Petitioner’s fourth step diary docu-

ments, that Petitioner’s first wife sold his

business and divorced him while he was

O64

incarcerated for his second felony offense. (R.T.

at 787, 788, 892; Fourth Step Diary At 5 — 6, 7).

The prosecution’s theory could reasonably be in-

terpreted by the jury as calling into question Pe-

titioner’s ability to handle another failure, the

loss of his business a second time to a wife who

could no longer put up with his drug addiction.

(See R&R, p. 28(17-28).) (emphasis original)

There are at least two problems with the reasoning

quoted above. First, fact findings of State courts, when

made after due inquiry, are entitled to a presumption of

correctness. (28 U.S.C. § 2254(e)(1).) This presumption

cuts both ways, applying to findings favoring Petitioner as

well as those favoring the State. (Liebman & Hertz,

Federal Habeas Corpus Practice and Procedure (3rd Ed.

1998, Lexis Press) § 20.2c fn. 47; Bland v. California

Department of Corrections (9th Cir. 1994) 20 F.3d 1469,

1474, cert den. 513 U.S. 947 (1994).) Therefore, the au-

thoritative description of the State’s motive theory is found |

in the California Court of Appeal’s opinion, not in the 7

Magistrate Judge’s reassessment thereof:

e evidence of motive was extremely strong. De- |

fendant was addicted to drugs, and Susan had |

removed him from the business checking ac-

count, depriving him of this source of money. De-

fendant was angry about this. Susan had

discovered defendant’s fourth step notes. This

discovery could have led to divorce, loss of the

business, separation from his son, and the expo-

sure of defendant’s past to the community.

(Appen. Respondent’s Answer Exh. #5, p. 13 [CCOA

Opinion]; see also RT 892(15) — 893(1), 943(1-3) [prosecu-

~—~—-tor’s arguments].)

Ss I ee oe ee eee ee eee

O65

The notion that Petitioner psychologically recoiled

from a repetition of events occurring in his last divorce

formed no part of the Court of Appeal’s fact-finding regard-

ing motive. That Court ranked and listed the motive

themes it deemed to be significant. This Court is not

permitted to reject or modify the Court of Appeal’s assess-

ment of the salient components of the State’s motive

theory unless it is upon “clear and convincing evidence”.

(See 28 U.S.C. § 2254(e)(1).)

It is also significant that respondent did not press any

argument under the nuance in the State’s motive evidence

upon which the Magistrate Judge now places primary

reliance. (See Respondent’s Answer, pp. 60-63.) Conclude

therefore, that de novo reevaluation of the motive evidence

in the trial record is inappropriate. The controlling de-

scription of the State’s motive theory is that of the Califor-

nia Court of Appeal.

Second, the Magistrate Judge’s theory of murder to

avoid reinjury to old psychological wounds, is completely

undermined by the extra-record evidence upon which

Ground #5 relies. Petitioner presented sworn facts in

support of the petition establishing that Petitioner could

have had no fear of a repeat of the traumas of his first

marriage. He utterly controlled the business this time

around:

In August of 1992, I consented to my wife's re-

quest that I withdraw as a signator on the busi-

ness (MacSource) checking account. I understood

her concern that I might relapse into the use of

drugs and use business funds. Susan was quite

firm about wanting me to do this, and after some

argument on the subject, I agreed in the interest

of marital harmony and to demonstrate my good

O66

faith. I was not pleased with the step — because it

meant I was not being taken at my word as to my

resolve to stay drug free. My wife needed my con-

sent to this step because I owned half of

MacSource’s stock, was its largest creditor, and

because I was CEO Chairman of the Board, and

President of the company. She had no legal au-

thority to compel me to concede my signature

power. Quite the opposite, J was in a position to

remove her from the account if I so wished. Jerry

Hamilton, Reed Harris and Carl Campbell were

all aware of the fact that I consented to being

removed from the account.

(Exh. #1 (para 42), to P & Ain support of Second Amended

Federal Petition.) (emphasis added)

Petitioner’s accountant, Carl Campbell, through

Exhibit #4 to P & Ain support of Second Amended Federal

Petition, tells us that MacSource was insolvent at the time

of Petitioner’s arrest, that “78% of the total shareholder

loans to MacSource” were the separate property of Peti-

tioner, and that the company owed Petitioner “more than

$140,000”. The rest of the community property was worth

only $18,400 at the time of Petitioner’s arrest. (See Exh.

#4, para 1-6, to P & A in support of Second Amended

Federal Petition.)

Obviously, on these facts, Susan would not have

gotten control of the unprofitable and insolvent business

described by Mr. Campbell. The liquidation of the business

upon Petitioner’s arrest yielded nothing. (Jbid.) Upon any

reckoning in a divorce proceeding, the business would.

have been appraised as valueless. The fact that Petitioner

controlled 78% of the insider debt, all the ranking corpo-

rate officerships, and 50% of the stock means that Susan

would have been off the checking account and barred from

;

O67

the business premises whenever Petitioner chose to do so.

As Petitioner said: “I was in a position to remove her from

the account if I so wished.” (Exh. #1 (para 42), to P & Ain

support of second Amended Federal Petition.)

Susan would have been entitled to child support and,

possibly, alimony, but on the facts before the Court, Peti-

tioner would have had no fear of losing control of the

technically bankrupt entity called “MacSource”. Obviously,

the Magistrate Judge unintentionally overlooked (or failed

to account) for these facts. As a result, unwittingly, her

argument supports a finding of prejudice. By postulating

that the jury relied upon a motive theory that is conclu-

sively rebutted by the extra-record evidence supporting

Ground #5, the Magistrate Judge compellingly demon-

strates how advantageous it would lave been to have

exposed the jury to the truth. The alternative motive

theory that the Magistrate Judge raises and relies upon is

born of the same false impression of Petitioner’s circum-

stances that counsel negligently failed to dispel. The jury

should have heard that Petitioner’s position with the

company gave him the legal right to oust Susan from the

company at any time. With 78% of the insider debt — over

$140,000 — Petitioner could have foreclosed on the insol-

vent company at any time, thereby nullifying the remain-

ing equity holders. It happens all the time.

Apparently Petitioner had learned from his first

experience with divorce. He had structured his affairs so

there would be no repetition of the traumas of his first

divorce. The jury should have known that. Given the

reasoning of the Magistrate Judge, this evidence was

obviously vital and exculpatory. Rather than exposing a

flaw in “petitioner’s reasoning, the Magistrate Judge’s

analysis has exposed a further dimension A trial counsel’s

O68

negligence and a further demonstration of the inadequacy

of the State’s motive theory in the face of the proffered

extra-record facts.

THE MAGISTRATE JUDGE’S SECONDARY

EMPHASIS ON THE POTENTIAL LOSS OF

ACCESS TO PETITIONER’S SON IS MISPLACED

The Magistrate Judge had one other argument in

favor of her recommended disposition of Ground #5.

Although it appears to be almost an after-thought, Peti-

tioner shall not neglect it here. This is the depressing

notion that Petitioner would premeditate the murder of

his wife to avoid losing custody of his son. This was one of

the motive theories mentioned by the California Court of

Appeal, albeit one that was nearly last in it reckoning of

them. It was also mentioned by the prosecutor at trial.

(See RT 892(15), 943(2).) And, so it remains: the only reed

upon which the State case on motive can lean after Peti-

tioner’s habeas evidence is accounted for. What would the

jury think of this ‘motive’ standing alone? This question is

the only logical remnant upon which prejudice analysis

can be performed after a proper accounting is taken of

Petitioner’s extra-record habeas evidence.

There was no evidence that Susan threatened divorce

in the face of finding the Fourth Step notes. There was no

evidence that loss of custody even occurred to Petitioner in

the few waking hours between Susan’s seizure of Peti-

tioner’s Fourth Step notes, and her death. Would a jury

likely believe that Petitioner premeditatedly and deliber-

ately killed his wife and unborn child to preserve custody

of his two-year old? Was there anything in the State’s case

~~ S|

O69

that bespoke of such a monstrous psychosis? Given what

the jury knew, and might surmise, of Petitioner’s lascivi-

ous and immoral past, would a jury that believed he was

motivated by a desire to return to his old habits also find it

likely that he would want custody of his son? Was he that

type of man? Are those two motives even consistent? And,

if he really was attached to the idea of maintaining cus-

tody of his son, what would account for his supposed

premeditated willingness to kill his unborn child? No, far

more likely — nay, inevitably — in finding a premeditated

murder the jury had to believe Petitioner was driven by

anger at being ousted from control of the business check-

ing account, fear of being taken to the cleaners in a di-

vorce, and the sockdologer: desperation at the prospect of

being blocked from money needed to finance future drug-

use. Drugs and money, and to a lesser exteni, scandal, are

the only plausible motives to support a murder with

premeditation and deliberation.

There was nothing in the profile of Petitioner given to

the jury that would have allowed them to reasonably

conclude that Petitioner had killed his wife to foreclose a

child-custody battle, when there was no evidence such

litigation was even threatened. The Magistrate Judge’s

secondary reliance on the conjecture that Petitioner feared

the loss of his son would follow Susan’s reading of the

Fourth Step Notes is unpersuasive.

AN ACCURATE PORTRAYAL OF

THE SCOPE OF GROUND #5

The Magistrate Judge clearly misperceived the scope

of Ground #5. In her words: “[Petitioner] asserts that the

O70

only motive presented by the prosecution was Petitioner’s

alleged financial concerns”. (R&R, p. 27(18-19).) Actually,

the extra-record evidence that supports the Second

Amended Federal Petition nullifies five different aspects of

the State’s motive theory. Here they are, in order of their

appearance in the State Court opinion:

(1) The notion that Susan had taken action

with regards to the business checking ac-

count, denying “Petitioner of a source of

money to “buy drugs”;

(2) The notion that Petitioner was “angry” be-

cause he could no longer access that ac-

count;

(3) The notion that divorce would have been fi-

nancially devastating to Petitioner;

(4) The notion that Petitioner was afraid that

his wife would reveal his sordid “past to the

community”; and

(5) The notion that Petitioner would have lost

his business in a divorce.

(See Respondent’s Answer Exh. #5, p. 13 [CCOA Opinion],

and compare Exh. #1 (para 39, 40, 42), to P & Ain support

of Second Amended Federal Petition; Exh. #4 [Carl Camp-

bell declaration] to P & A in support of Second Amended

Federal Petition; Second Amended Federal Petition,

Ground #5, point 2 [verified at p. 24].)

It should be noted that the Second Amended Petition

at Ground #5, point 2, clearly states that Petitioner, at the

time of his arrest, in his separate property, was a million-

aire. While the Magistrate Judge notes that Carl Camp-

bell, Petitioner’s accountant, did not include an estimate of

PE on Oe EIT eee

Sahin Piaiccts Sak Seth 8 5s CBRNE of AIG eA lle ENE HRY

O71

Petitioner’s separate net worth in his declaration, this is

hardly relevant. If the Magistrate Judge doubts Peti-

tioner’s sworn assertion on this point, the appropriate

response is to set the matter for an evidentiary hearing.

Respondent did not contest the assertion. It must be

assumed true for the purposes of this Court’s analysis.

THE CRUCIAL ROLE OF MOTIVE

IN THE CALJIC INSTRUCTIONS

REGARDING FIRST-DEGREE MURDER,

PREMEDITATION, AND DELIBERATION

CALJIC No. 8.20 states:

To constitute a deliberate and premeditated

killing, the slayer must weigh and consider the

question of killing and the reasons for and

against such a choice and, having in mind the

consequences, he decides to and does kill. (em-

phasis added)

What would such a weighing and consideration of the

“question of killing and the reasons for and against such a

choice” sound like? It would have to be an inner soliloquy

on motive. To wit: what shall I gain by this act? This jury

instruction is not permissive. It uses the word “must”.

Thus, given the absence of any evidence that would pass

muster under CALJIC No. 2.01 of “planning”, the jury

must have relied heavily upon the State’s motive theory. In

ruling on Petitioner’s sufficiency-of-evidence challenge, the

California Court of Appeal certainly did. (See Respondent’s

Answer Exh. #5, p. 13 [CCOA Opinion.) By the terms of

CALJIC No. 8.20, the jury could not convict unless they

O72

believed that Petitioner consciously performed a cost-

benefit analysis before the deed was done. And, what

would the jury imagine that reckoning to have been

without the false considerations of motive which the trial

prosecutor spread before the jury?

CONCLUSION

Make no mistake, Petitioner is not saying that he

would have been a free man but for trial counsel’s failure

to rebut the State’s false motive evidence. Nor, is Peti-

tioner arguing that “no reasonable jury could” have found

proof beyond a reasonable doubt if they had been ac-

quainted with the truth. Petitioner is saying that there is

a “reasonable probability” that he would not have been

convicted of premeditated, deliberate murder. The State’s

case was too dependent on its false motive theory to be

unaffected by the expression of the truth. They had no

evidence of planning. The State’s false motive theories

were so pernicious because, on the unique facts of this

case, a reasonable jury would be unlikely to be satisfied

with the State’s case for premeditation under CALJIC

Nos. 8.20 and 2.01 without a persuasive theory of the

considerations “for and against” the act which allegedly

occupied Petitioner’s thoughts at the time of that act.

As the California Court of Appeal notes, Petitioner

was seen “limping and had a bandage on his left hand” the

day after Susan’s death. (Respondent’s Answer Exh. #5,

p.3 [CCOA Opinion].) The deep bite mark (see RT 729-730)

on Petitioner’s hand was not consistent with Petitioner

suddenly locking on Susan’s neck and choking the life out

of her. It was not consistent with an attack with the

computer cord from behind. It, together with the other

O73

physical evidence, was consistent with a fight that ended

with Susan being strangled. The State’s theory was that

the fight occurred over Susan’s discovery of Petitioner’s

Fourth Step notes. (RT 892 (10-14), 944(10-13) [prosecu-

tor’s argument].) So there was an argument, there was a

fight, and there was Susan’s death at Petitioner’s hands.

What did the jury have as supporting a finding of pre-

meditation and deliberation other than the State’s motive

theory and the mere fact of manual strangulation? Noth-

ing of consequence. California law conceded that the

method of the killing would not, in and of itself, settle the

premeditation question. (See Respondent’s Answer Exh.

#5, pp. 13-14 [CCOA Opinion].) Moreover, the existence of

provocation can justify a finding of Second-Degree Murder

notwithstanding some evidence of premeditation. (CALJIC

No. 8.73.)

This case, once the trial record is purged of the false

motive theory, read at best as no more than a murder with

malice, a murder under provocation, the galling provoca-

tion of a justifiably enraged wife who was shocked at the

revelation of her husband’s infidelity with prostitutes. As

the prosecutor said in his summation:

[I}f Susan Kurtz, after reading the Fourth Step

... had confronted him and killed him in a rage

that night, she would have a good argument for

voluntary manslaughter.

(RT 947 (1-5.)

—_

In the most generous reading of the State’s case

absent the motive evidence, one might reasonably con-

clude that Petitioner responded to his wife’s rage, blows,

and bites, maliciously and with intent to kill or reckless

O74

disregard for her life. But reaching deliberate, premedi-

tated murder without the State’s false motive theory, takes

one deep into the realm of conjecture. To wit: perhaps it

was not happenstance that Petitioner had an electrical

cord around his neck; perhaps it was not happenstance

that this occurred on a day that no one expected to physi-

cally interact with Susan; perhaps Petitioner planned to

remove her body in the van, perhaps he was balked by her

weight; perhaps he was thinking clearly enough during

their struggle to “weigh and consider” the reasons for and

against killing Susan — perhaps. Perhaps all former drug

users who consort with prostitutes only commit premedi-

tated, deliberate murder. Perhaps the only consciousness

of guilt that one can have is consciousness of guilt for first

degree murder.

Far more likely, this was a second-degree murder or

manslaughter. After all, petitioner had to know that one

day he was going to have to tell his wife about the infideli-

ties. Such disclosure was an inevitable and sequential part

of the 12-Step program that Petitioner was so diligently

executing. The most likely inference is that Petitioner

expected that his wife would be able to withstand and

recover from that shock. She was participating in the

Alanon program, and would have had the support of other

women and men who had to forgive their spouses for

similar offenses. His wife had risen to the occasion for the

revelation of a drug-addiction. Given these circumstances,

why would Petitioner jump to the conclusion that his

wife’s reading of his Fourth Step spelled the doom of their

marriage, his business, and his entire way of life? Far

more likely, the fight started with unexpected provocation

and hard words from Susan. Susan, who outweighed

Petitioner by 100 pounds (R&R, pp. 6-7), provoked a fight

;

Sine Mert LSet wi tidiatra Me

el eee easy, Soul

CS VY PNR CE AEE Nee IE IA Cal aA Ti SDT cai EAL Htc

O75

which sufficiently disoriented and dazed Petitioner so that

her death could come about as he described, or that her

hard words and blows so inflamed Petitioner that he

became utterly heedless of the consequences of the violent

spirit that animated him.

The record does not offer much support for the idea

that Petitioner was the sort of man who would premedi-

tate and deliberate such wickedness. This man was not an

addict wallowing in his evil habits. He was conscientiously

trying to remake and redeem himself. The confession of

his past to the community (see Exh. #1 (para 40) to P& A

in support of Second Amended Federal Petition — a hard

step, his reconciliation with his wife, the rigor and painful

self-analysis called for by the 12-Step Program, the volun-

tary relinquishment of his signature power on the check-

ing account, these were the landmarks of his recent past.

To say that the tragedy of that day was planned is an

offense against the revealed nature of this man. There is a

world of difference between first-degree murder and

second-degree murder. The former is committed by an

entirely different caliber of man. That this was a first-

degree murder is a wicked misconception that took root in

the fertile soil of a wholly illusory motive. Men of bad

character are not all of one stripe. It is as if Petitioner’s

jury was told that Petitioner had a huge and unnecessary

insurance policy on his wife. Once a fact of this case, such

a patent falsehood, foisted on an unwitting jury due to the

negligence of a defense attorney, would be grounds for a

reversal. Petitioner’s proffered evidence is of the same

nature and to the same effect.

Petitioner’s first-degree murder conviction should be

vacated.

O76

OBJECTION #6

THERE IS A REASONABLE PROBABILITY

THAT TRIAL COUNSEL'S FAILURE TO

PRESENT SUSAN’S ALANON DIARY BROUGHT

ABOUT PETITIONER’S CONVICTION

GROUND #6: ATTORNEY SMITH VIOLATED PETI-

TIONER’S SIXTH AMENDMENT. RIGHT TO EFFEC-

TIVE ASSISTANCE OF COUNSEL BY FAILING [O

PRESENT ENTRIES FROM SUSAN’S “DIARY” DEM-

ONSTRATING THAT AN AVALANCHE OF ANGER

WAS _PENT-UP_ INSIDE HER -— WANTING TO BE

LOOSED ON PETITIONER IF HE PROVED TO BE

UNFAITHFUL.

WAS TRIAL COUNSEL'S FAILURE TO

PRESENT SUSAN’S DIARY NEGLIGENCE?

WAS THE DIARY ADMISSIBLE?

The Magistrate Judge found that “Petitioner fail[ed]

to address whether this ‘Diary would even be admissible.”

(See R&R, p. 30(3).) Actually, Petitioner did. (See Memo of

P&A in support of Second Amended Federal Petition, pp.

66(18) — 67(16); Traverse, p. 68(2-14).) The Magistrate

Judge opines that the trial court would not have admitted

the diary because it was dated “November 6, 1991 and

October 3, 1992”, “a year to three months prior to the

event in question” (R&R, p. 30(11-12).) The Magistrate

Judge believes that this hiatus would have rendered

Susan’s account of her state of mind irrelevant. Petitioner

has several responses.

O77

First, it is unlikely that the trial judge would have

adopted double standard as far as the admission of state of

mind evidence. The trial court had admitted Petitioner’s

statement, allegedly made in September or October of

1992, to Dale Shimono, allegedly to the effect that Peti-

tioner sometimes felt that it might: be easier if his wife was

dead. (See RT 236-237.) Moreover, the trial judge allowed

the parties to question witnesses about the entire multi-

year relationship between Mr. and Mrs. Kurtz. He would

hardly be able to declare Susan’s state of mind about that

relationship inadmissible because it was dated fourteen

months and three months before her death. The case for

admission under California Evidence Code section 1250 of

the Shimono statement is far more tenuous than expres-

sions of emotion in Susan’s journal because the former was

a single isolated remark made when the relationship

between Mr. and Mrs. Kurtz was in a very different phase

than it was when Susan died.’

' Substantial uncontradicted evidence was presented at trial

establishing that Petitioner was quite even tempered with Susan and

tat he had a character trait for non-violence. (See RT 561-566, 610-

613, 616-620, 696-697.) Assuming arguendo that Petitioner made the

statement Shimono claimed, he did so months before during & period of

time of marital difficulties and separation from Susan. (RT 235-236,

239-248.) The State could not produce a single witness showing that

Petitioner had ever struck his wife, and Susan’s diary does not reveal

any such incident either. The disputes between the couple were all

verbal. (RT 199, 206-207, 234-235, 678-679.) The prosecutor left

uncontradicted evidence that his wife and he had reconciled their

differences in a shared joy at two blessings that had come into their

lives: Susan had become pregnant with their second child and Peti-

tioner appeared to be winning the war against drugs and alcohol. He

had been clean for over nine months at the time of Susan’s death. (RT

132-133, 167, 173-174, 658-659.)

O78

Second, Susan herself dated her journal “Nov 6, 1991,

and then again on Oct. 3, 1992” — thus, indicating that the

beliefs and feelings expressed in the journal endured for at

least the 10 months between working sessions on the

journal. This readoption and reexpression of the senti-

ments expressed in the journal logically justifies a high-

degree of confidence in their relevance at the time of

Susan’s death. Indeed, who can read the journal and

conclude that anything beyond a decade of loyal, honest,

companionship and caring would clean the deep wounds in

Susan’s psyche? It is simply not reasonable to suggest that .

the trial judge would have reason to believe these feelings

and beliefs were ephemeral.

Third, the Magistrate Judge’s analysis conflates two

distinct foundational inquires. The hearsay analysis is

separate from the relevance evaluation. Under California

law, one must establish that the statements fall within an

exception to the Hearsay Rule by a preponderance of the

evidence. (Jefferson’s California Evidence Benchbook,

supra, § 25.11.) The Magistrate Judge impliedly conceded

— and it could not be seriously questioned — that Susan’s

statements fall within Evidence Code section 1250. A 20-

year old expression of state of mind would qualify under

section 1250 as easily as a three-hour old statement. The

Magistrate Judge’s remarks about the date of the journal

go to its relevance or to analysis under Evidence Code

section 352. Under California law, the relevance threshold

is easily crossed. (Jefferson’s California Evidence

Benchbook, supra, §§ 21.16-21.27; Cal. Const. Art. I,

§ 28(d); Cal Evid C § 210; People v. Hill (1992) 3 Cal.4th

959, 987-988.) Thus, the admissibility of the evidence is

not really called into question by the Magistrate Judge’s

argument.

O79

Fourth, respondent did not argue admissibility. (See

Respondent’s Answer, pp. 44, 60-63.) Presumably, if there

was some glaring flaw in the foundation for admission of

the document, respondent would have pointed it out.

DOES THE DIARY SHOW A WOMAN FILLED WITH

REPRESSED RAGE OR A “REASONABLE” ONE?

The Magistrate Judge remarks:

As Petitioner admitted, read in its entirety this

document creates a picture of Susan as a woman

who was disappointed and disillusioned by the

reality of her marriage. Far from evidencing that

she was a powder keg of ‘repressed rage’, it

shows that she also took responsibility for the

problems in her marriage.

(R&R, p. 30 (18-22).) Thus the Magistrate Judge posits

that it is reasonableness not repressed anger that the

diary establishes. Petitioner is surprised that the Magis-

trate Judge sees reasonableness and repressed anger as

somehow mutually exclusive. What could be more reason-

able than to be utterly furious with Petitioner? It was the

most reasonable thing in the world to be “mad”, to feel

“anger” and moments of “rage” — to use Susan’s words —

given Petitioner’s behavior, even before she learned of his

frolics with dozens of hookers while she was pregnant with

their first child. (See Exh. #11 to P & A in support of

Second Amended Federal Petition [Petitioner’s 4th Step];

Exh. #10 to P & Ain support of Second Amended Federal

Petition [Susan’s diary].)

In fact, one might have assumed that Susan was

furious — even without reading her diary — if it had not

080

been for the counterfactual portrait of her psychology that

was foisted on the jury at trial.

The jury was told, in essence, that Susan had an even

and mild disposition that reacted with “concern” to her

husband’s travails, but without anger. The evidence on

this point is fully outlined in the Memorandum of Points

and Authorities filed in support of this Second Amended

Federal Petition at pages 59 to 62. If there is any question

of Petitioner’s characterization, this material should be

reviewed before this Court proceeds any further in the

adjudication of this Objection. Because of the state of the

evidence, including Petitioner’s own testimony about

Susan’s mild demeanor, the prosecutor was able to ridicule

Petitioner’s defense in his closing arguments. The prosecu-

tor pointed out that:

[Petitioner] says [that] there was a fight. That is

coming from his mouth and his mouth only.

(RT 943(13-14).) Susan, the prosecutor continued, was a

person who “never raised a hand to anyone before, even

[the defendant]”. (RT 944 (8-9); see also RT 795 (16-22)

[Petitioner’s admission to that effect].) The prosecutor

derided the notion that such a person would “all of a

sudden. . . . comes at him in this raging attack and he

has to defend himself”. (RT 944(14-17).) At another point

in his argument, the prosecutor told the jury that if they

believed Petitioner, they had to accept as true “that a

pregnant woman who had been relegated to bed rest who

had never raised a hand to anyone in her life attacked

him;... She. ... went into a rage and attacked him”. (RT

900(16-21).) In this way the prosecutor’s argument mir-

rored the state of the evidence and accurately captured the

extent to which Petitioner’s fate turned on the jury’s

;

ee ae

081

assessment of whether Susan had it in her to become as

angry as Petitioner claimed she was on January 4, 1993.

(See RT 722, 732-733, 840-842.)

Contrary to the Magistrate Judge’s apparent concep-

tion of Ground #6, it does not depend on the fact that —

Susan’s diary revealed some sort of bizarre or aberrant

psychological condition. Rather, the diary is important

because it would have been the only evidence capable of

demonstrating that Susan was not the person that her

relatives and Petitioner believed her to be. There were a

lot of feelings that she apparently did not express, except

on paper. It turns out that she was not the long-suffering

sort that can immediately forgive he husband, no matter

how deplorable his conduct. There are many unfortunate

women that will take an almost infinite amcunt of abuse,

‘BW9Y’ or “Battered Wife Syndrome” is named for that, all

too common, psychological disposition. There are many

other women who are so profoundly spiritual that they are

able to meet the follies of their husbands with complete

faith, forgiveness, and love. As we all know, often such love

is redemptive. 7

The problem that arises when one reads the trial

record is the evidence suggests the wrong categorization of

Susan. One would think that she was one of those rare

women who was more ‘saintly than human. Again, Peti-

tioner offers his summary of that evidence at pages 59 to

62 of the Memorandum of Points and Authorities in

support of his Second Amended Federal Petition. The point

of the diary is that it accurately portrays Susan’s psycho-

logical ferment over her husband’s behavior.

Given the conviction for first-degree murder, it is

apparent that the jury bought the prosecutor’s argument

082

about the utter improbability that ‘mild, long-suffering’

Susan would have boiled over in rage upon discovering

evidence of Petitioner’s unfaithfulness with prostitutes

during their marriage. There is nothing surprising in

Susan’s actual emotional disposition — as revealed by her

diary. Prejudice arises in relation to Ground #6 only

because the contents of that diary would have been sur-

prising to the jury. In fact, the prosecutor would have been

unable to press his main attack on the credibility of

Petitioner’s story (as contrasted with the myriad attacks

on Petitioner’s character and veracity) had the diary been

in the jury’s hands. With access to the diary, there would

have been a “reasonable probability” that the jury would

have been unable to reject, “beyond a reasonable doubt”,

Petitioner’s scenario. This is the gravamen of Ground #6 —

and, it is a point that fully justifies reversal.

WAS THERE A PLAUSIBLE DOWNSIDE TO

THE ADMISSION OF SUSAN’S DIARY?

The Magistrate Judge opines that:

Additionally, Trial Counsel may have chosen not

to introduce this document as there were damag-

ing statements about Petitioner. For example, |

Susan wrote: ‘I felt afraid that I had to make love

to him after he came home ... because of the

way he would act — mad, hostile, aggressive, ac-

cusatory.’ (Susan’s Step Diary at 3). Contrary to

character witness testimony at trial, this state-

ment suggests that Petitioner may have had a

history of violence or aggression towards his

wife.

(R&R, p. 30(22-28).) (emphasis added)

= ee oe eee a eae

083

Petitioner respectfully submits that the Magistrate

Judge has drawn an unreasonable inference. The natural

conclusion one draws reading the diary is that its author

poured her heart out onto those pages. If Petitioner had

ever hit her, it would have been noted. If he was prone to

screaming at her, it would have been duly noted and

remarked upon. In context, it is clear that the sort of

“mad, hostile, aggressive, accusatory” behavior to which

Susan refers to is a sort of stiff-necked surliness and

argumentation — not the sort of spousal abuse that is

governed by the Penal Code. To hypothesize that the

quoted phrase “suggests that Petitioner may have had a

history of violence or aggressiveness towards his wife” — is

to posit that Susan was holding back the worst of his

behavior, a gloss that the journal does not allow us to take

seriously. Its tone is just too candid. Susan mentions

slights and wrongs that would pale in significance if

contrasted with any story of actual physical abuse. The

diary therefore corroborates Petitioner’s testimony regard-

ing his lack of violence or physical aggressiveness towards

his wife.

The Magistrate Judge also asserts:

Susan had also written: “(I] just pretend that if

he tells me he hasn’t slept with anyone and that

he used new needles that it will be O.K.” (Susan’s

Step Diary at 4). This suggests that she didn’t

believe Petitioner when he told her that he had

never had intercourse with other women.

(See R&R, pp. 30(28)-31(2).)

Petitioner qualifiedly agrees in this instance with the

Magistrate Judge. It does suggest that she did have

doubts, possible strong doubts, about Petitioner’s fidelity.

084

Petitioner has never contended otherwise. However, there

is an important distinction to be made. In her journal,

Susan does not express certainty about any of the bad

behavior which Petitioner did not himself admit. For

example, she found 900 phone numbers on her phone bill.

Petitioner asserted “it was an error on [their] billing” and

had the phone company reverse the charges. Now, given

the context, most of us would have utterly rejected Peti-

tioner’s explanation. But, Susan got no further than to

conclude that Petitioner “probably did them”. She stated

in her journal that Petitioner’s behavior “makes me very

mad. . ., because it makes me wonder if he really did just

stop at just this ... that he didn’t sleep around”. (See

Susan’ Step Journal.) Thus, the journal dispositively

establishes that Susan had doubts, painful doubts, about

Petitioner’s fidelity that made her “very mad”, — but no

proof. For this reason, the Magistrate Judge’s observation

about the significance of Susan’ doubts is not well taken.

The journal shows a woman that waited on Petitioner

to admit misbehavior to her, a woman that lacked the

disposition to draw and act upon logical inferences. She

was hemmed in by her insecurities, her hopes and beliefs

for her marriage, her love for Petitioner. She did not want

to believe the worst. She was clinging to her faith in God

and to her dreams for her life. She could not stand how

Petitioner’s squalid behavior, even that short of the full

betrayal that infidelity with prostitutes would represent,

made her feel. She recoiled from the “rage” (Susan’s

words), the boiling emotions that had her “so mad” she

could “spit”, because she did not know how to reconcile

those feelings with her religious training and views and

her plan for her life. (Petitioner summarizes the pertinent

passages from Susan’s Journal at pages 62 to 66 of the

Memorandum of Points and Authorities filed in support of

the Second Amended Federal Petition.) Even after all the

trauma, Susan wrote: “I still so much want to fix things for

him.” (Exh. #10, p. 3(para 3), p. 4(para 5) to P & A in

support of Second Amended Federal Petition.) She felt God

wanted her to act out the role of a good, patient, wife.

(Ibid.)

This is the tale told by Susan’s journal. She needed

Petitioner’s admissions to justify her feelings, to ripen her

frustrated anger into action.

WERE THERE OTHER PITFALLS TO ALLOWING

THE JURY TO HAVE ACCESS TO THE DIARY?

Petitioner was not on trial for consorting with prosti-

tutes, using drugs, being a first-class jerk, or betraying his

wife’s trust. There is nothing in Susan’s journal that

cheapens Petitioner’s character beyond what the prosecu-

tor and Petitioner’s own attorney managed to do through

their own devices. Petitioner’s Fourth Step goes a good

deal beyond Susan’s journal in trashing Petitioner’s

character, and the jury had access to it.

It is interesting to note that neither the Magistrate

Judge nor Respondent has been able to point to any act or

event in Susan’s diary which was outside the range and

nature of the bad character evidence that came in against

Petitioner at trial.

O86

WHY IT IS UNREASONABLE TO ASSUME

A “TACTICAL” EXPLANATION FOR TRIAL

COUNSEL'S FAILURE TO USE THE DIARY

It would be unreasonable to assume, without the

benefit of an evidentiary hearing, tactical avoidance as the

explanation for trial counsel’s nonuse of Susan’s diary.

Trial counsel himself admitted that Petitioner’s Fourth

Step came into evidence because he was ineffective. Coun-

sel specifically cited himself for this failing in the Notice of

Appeal that he filed on Petitioner’s behalf. (See Exh. #13

to P & Ain support of Second Amended Federal Petition,

or CT 310-311.) In fact he cited himself as ineffective on

three counts. (Ibid.) It would therefore be unreasonable to

dispose of Ground #6 on guesswork and supposition.

RESPONDING TO THE MAGISTRATE JUDGE’S

REMARKS CONCERNING PREJUDICE

THE MAGISTRATE JUDGE’S GCBSERVATION

THAT SUSAN’S DIARY DOES NOT EXPLAIN

WHY SHE DID NOT REACT IMMEDIATELY

UPON FINDING THE DOCUMENT

The Magistrate Judge states:

Petitioner states that a key fact going to the need

for this corroborative evidence is that the prose-

cution did not question Susan’: finding of the

‘Fourth Step’ paperwork but ratier her reaction

to it. The prosecution questioned why Susan

didn’t react with violence imnediately upon

ae Sai aa ages AEE

087

finding the document. Admission of her diary

does not answer this question.

(R&R, p. 31(18-23).)

Petitioner agrees that Susan’s journal does not answer

this question. But how important is this omission? Have

not all human beings had experience with brooding on a

wrong and then suddenly lashing out verbally and physi-

cally about it? Does such a common aspect of the human

condition need proof and evidence? In any event, the

answer to the question was supplied, to a large extent by

Petitioner’s testimony, the pertinent aspects of which the

Magistrate Judge very capably summarized at page 29,

lines 12 to 26 of her Report. Apparently, after being re-

buffed by Petitioner in her reasonable demands for an

explanation, Susan spent a (probably) sleepless night

crystallizing the implications of Petitioner’s admissions in

mind. Then exhausted and frightfully angry, she exploded

when Petitioner had the cheek to suggest that she by a

remark she made, was inappropriately taking her anger

out on their child. (See RT 713-715; or see R&R, p. 29(12-

26).) One can imagine how Susan could ‘tee of’ on that one.

The problem, then, was not that the case needed — or

even lacked — an answer to the Magistrate Judge’s ques-

tion, it was that the diary was, albeit, some evidence to

rebut the State’s character portrait of Susan’s mild,

forgiving, disposition, and that she appeared to be a

person that simply would not react in the way Petitioner

claimed to Petitioner’s Fourth Step. The prosecutor had

many attacks on Petitioner’s character, but very little to

work with when it came to the substance of Petitioner’s

description of how Susan died. The false portrait of

Susan’s nature was what the prosecutor turned to in his

088

summation to defeat the substance of Petitioner’s story.

Doubtless, it was the basis the conviction for first-degree

murder rested upon.

THE MAGISTRATE JUDGE USED THE

WRONG STANDARD OF REVERSAL

IN RESOLVING GROUND #6

Petitioner explored the difference between the “prob-

abilistic standard” of Strickland v. Washington, which

focuses on what a reasonable trier-of-fact would do, and

the Jackson v. Virginia standard, which focuses on what a

reasonable trier-of-fact could do. (See supra, pp. 38-54.)

This analysis applies with equal force here. The Magis-

trate Judge manifestly analyzed Ground #6 by asserting

whether the jury “could still have found [Petitioner] guilty

of first-degree murder” even if it had been apprised of

Susan’s diary. (R&R, p. 31(25).) In all, the Magistrate

Judge uses the “could” formulation on five occasions in her

summation on prejudice for Ground #6. (See R&R, pp.

31(24) — 32(12).) Thus, the Magistrate Judge’s prejudice

analysis is improper and should not guide this Court.

THE MAGISTRATE JUDGE CONFLATES

EVIDENCE DISPROVING SELF-DEFENSE AND

ESTABLISHING THE COMMISSION OF A CRIME

WITH EVIDENCE PROVING FIRST-DEGREE

MURDER - AND THUS WRONGFULLY JUDGES

THE ISSUE OF PREJUDICE FOR GROUND #6

Here is what the Magistrate Judge had to say on

prejudice for Ground #6:

—

O89

Even if the jury believed every word of Peti-

tioner’s testimony regarding his wife’s anger,

they could still have found him guilty of first de-

gree murder. It was Petitioner’s actions in the

face of Susan’s anger that led to his conviction,

not the actions of his wife. In the circumstances

as described by Petitioner, there appears to be no

reason for him not to have left the house. He tes-

tified that he was being hit and kicked; also said

that it didn’t really hurt. (R.T. at 719, 722.) He

stated that he was not in fear of his life, but

rather he was just trying to control his wife. (R.T.

746, 784-85.) The jury could reasonably have

found that holding a computer cord around

someone’s head or neck is highly likely to lead to

strangulation and death. Additionally, the jury

could still have determined that during the

struggle Petitioner had the opportunity to con-

sciously choose between walking or running

away from the house and his upset wife or killing

her. They could reasonably have found that Peti-

tioner’s actions following the murder were evi-

dence of his consciousness of guilt. Finally, they

could have found that Petitioner, based on his

lies to family, friends, and police officers, was not

a credible witness and therefore did not believe

that this was an accident.

(R&R, pp. 31(24)-32(12).) (emphasis added)

The Magistrate Judge’s words appear to be a devastat-

ing attack on Petitioner’s prejudice theory — that is, until

one takes the passage line by line.

Petitioner concedes that Susan’s diary would not have

explained why, even under Petitioner’s version of events,

090

he did not leave the house. But failure to take an opportu-

nity to retreat does not negate self-defense and it does not

prove first-degree murder. (See CALJIC No. 5.50.)

Petitioner concedes that he admitted that Susan’s

blows did not really hurt — many people do not register

physical pain when they are fighting or immediately upon

any accident, but shock sets in quickly in the face of

brutality. While the deep bites on Petitioner’s hand and

the kicks (that were the cause of a noticeable limp the day

after) certainly must have hurt later, in his analysis, it

really does not matter. The seriousness of Susan’s offer of

violence would be relevant to whether Petitioner had

justification to use lethal force. Petitioner’s sensations

would bear on a manslaughter theory and the issue of

provocation. But, Petitioner’s failure to really notice how

much he was being physically hurt by Susan during their

battle, does not have any tendency in reason to prove that

he deliberated or premeditated her murder. It is his

emotional state, that is, dazed, shocked, outraged, disasso-

ciated, etc., in the face of her unexpected ferocity, that is of

greater significance in terms of the jury instructions.

Continuing to follow the course of the Magistrate

Judge’s analysis, Petitioner next concedes that the jury

could reasonably have found that holding a computer cord

around Susan’s neck was “highly likely to lead to death”.

But, such a finding would not be dispositive on the varying

elements of intentional murder in heat-of-passion (man-

slaughter), intentional murder with malice (i.e., second-

degree murder), and first degree murder.

Petitioner likewise concedes that the jury “could

reasonably have found that Petitioner’s actions following

the murder were evidence of his consciousness of guilt”.

O91

(R&R, p. 32(8-10).) Yet, an inference to consciousness of

guilt would not allow the jury to assess the degree of

murder or to exclude manslaughter. One can just as well

be overwrought with guilt for the manslaughter death of

one’s wife as of her first-degree murder. In fact, one that

kills in the heat-of-passion is more likely to feel remorse

than a cold-blooded murder.

Petitioner concedes the jury could have found that

“his lies” to everyone involved made him “not a credible

witness”. (R&R, p. 32(10-11).) But the negation of Peti-

tioner’s credibility could not supply the jury with proof of

the degree of the crime either. The Magistrate Judge

opines that the reasonable finding that Petitioner was not

credible “could” have justified a determination that

Susan’s death was not “an accident”. R&R, p. 32(10-12).)

Voluntary manslaughter is an intentional murder, so is

second-degree murder. If Petitioner lied, which crime did

his lies cover?

In the end, the Magistrate Judge’s accounting of the

elements of the case that she feels disprove prejudice on

Ground #6, actually end up proving prejudice for the

claim. Conspicuously absent from the Magistrate Judge’s

massing of the evidence establishing first-degree murder,

is any evidence that proves beyond a reasonable doubt

first-degree murder.

Petitioner contends that it is reasonably probable that

the jury got to first-degree murder about the same time

that they bought ‘hook, line, and sinker’ the prosecutor’s

assertions that Susan’s personality was incompatible with

attacking Petitioner — regardless of the provocation that

his Fourth Step nominally offered. For if the jury con-

cluded that Susan, consistent with her character as they

O92

were given to understand it, would never raise her hand

against Petitioner — and this is certainly the position the

prosecution took in his summation — then, and only then,

could they negate the lesser degrees of homicide. Let us be

objective. Susan’s death could have occurred under a

variety of scenarios. There is no direct, independent,

evidence of either of Petitioner’s or Susan’s state of minds

on the morning of January 4, 1993. The prosecutor’s

summation is, in the crucial matter of the one element

separating first and second-degree murder, merely conjec-

ture and rhetoric.

The certainty beyond a reasonable doubt of Susan’s

nonviolent reaction to the Fourth Step was the one and

onlyindispensable element of the State’s *heory of Murder-

One. If you believe it, then Petitioner bh .d to have been the

‘first-mover’. If he was the one that instigated the violence,

a first-degree murder conviction is fully justified. If he

wasn't, then it is far more difficult to get to the sort of

certainty of premeditation that would carry the State’s

burden of proof.

For these reasons, the Magistrate Judge’s free-

wheeling accumulation of the weaknesses in Petitioner’s

case for acquittal (on self-defense or accident), or for

voluntary manslaughter, are unavailing.

OBJECTION #7

GROUND #7 STATES A COMPELLING

BASIS FOR REVERSAL

GROUND _ #7: PETITIONER'S RIGHTS UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS TO EFFEC-

TIVE ASSISTANCE OF COUNSEL AND RIGHT TO DUE

PROCESS (FIFTH AMENDMENT) WERE VIOLATED

wate red

093

WHEN TRIAL COUNSEL SMITH NEGLECTED TO

SEARCH A WALLET CONTAINING INADMISSIBLE

HEARSAY EVIDENCE LATER FOUND BY THE JURY

Petitioner presented evidence that the jurors discov-

ered Susan’s HIV test receipt, discussed it, and that — for

at least one juror — it was the basis of their verdict. (See

Exh. #15 to #17 to the P&A in support of the Second

Amended Federal Petition.)

Petitioner concedes that only the evidence that the

receipt was found and widely discussed by the jury is

admissible. (See R&R, pp. 33(11)-34(4).) The evidence that

the receipt proved to be decisive is inadmissible. (Ibid.)

Nevertheless, such evidence should chasten this Court

from too much verbal wizardry in rejecting Ground #7. As

the United States Supreme Court stated in Tanner v.

United States (1987) 483 U.S. 107, 120-121, 97 L.Ed.2d 90,

107 S.Ct. 2739, evidence of the thoughts of jurors are

excluded, but not because they are irrelevant or inherently

untrustworthy. They are excluded on public policy con-

cerns which have little to do with doing justice in an

individual case. On the facts before this Court, this evi-

dence was prejudicial. While Petitioner may not be able to

insist upon inferences drawn from the inadmissible

aspects of Exhivits 15 to 17 to the P & A in support of the

Second Amended Federal Petition, the nature of the

inadmissible aspects of the juror declarations should fully

awaken this Court’s coriscience.

The Magistrate Judge dismisses Ground #7 on preju-

dice grounds as follows:

Therefore, he concludes, the jury must have in-

terpreted this receipt to mean that Susan knew

of Petitioner’s infidelities, and that destroyed his

094 lj

credibility which led them to convict. [ ] What Pe-

titioner fails to acknowledge is that he had told

his wife he was an intravenous drug user. The

simplest explanation for the blood test was that

Susan sought the test because of this behavior.

The jury therefore did not need to infer that she

knew of his contact with prostitutes. Alterna- -

tively, Petitioner testified that while Susan knew

most of what was in his fourth step diary, she

just didn’t know the specifics. (R.T. at 793.) The

jury could therefore have determined that based

on her suspicions she decided to get tested. This

would have been~consistent with the evidence

that Petitioner presented at trial. Thus, exposure

of the jury to this extrinsic evidence did not nec-

essarily incriminate Petitioner or unduly influ-

ence their determination of guilt or innocence. [ ]

As discussed previously, even if the jury believed

Petitioner’s testimony that he was only respond-

ing in kind to his wife’s rage, the jury could still

have found him guilty. See discussion Claim D

supra. Therefore, consideration of this evidence

would have been harmless error and this claim

must fail.

(R&R, pp. 34(20)-35(10).) (emphasis added)

There are several errors in this analysis:

First, as the underlined portions of the passage quoted

above establish, the Magistrate Judge was again applying

the standard of reversal that pertains in insufficiency of

evidence challenges under Jackson v. Virginia to Peti-

tioner’s claims under the “probabilistic standards” of

Strickland (Ground #7) and Brecht v. Abrahamson. (See

supra, at pp. 38-54.) Petitioner’s argument is not that

the jury’s discovery of the receipt “must have” been preju-

dicial, but that it was reasonably likely to have been

O95

prejudicial and that its unrecognized presence in the

evidence had a substantially injurious effect on the trial

and its outcome. The Magistrate Judge’s analysis to the

effect that the jury “could still” have found for first-degree

murder proves that her consideration of the claim tested it

against the wrong metric. :

Second, in supplemental briefing filed on July 24,

2000, Petitioner pointed out that California Health and

Safety Code section 199.46(h) states that “[t]he AIDS virus

is transmitted primarily through sexual contact...” This

Legislative finding serves as the only reasonable bench-

mark for what California society, and hence, the jury,

believed. The Magistrate Judge’s supposition of other

possible inferences is not premised on any similar author-

ity. The main probability, is that the jury believed what we

know from inadmissible evidence that they actually

believed, that is, that Petitioner’s infidelities were known

to his wife prior to their fight and her death. In this

supposition they were, of course, incorrect. (See Ground

#6, supra.)

Third, there was nothing in the evidence to suggest

that Petitioner, a relatively well off man, was sharing

needles or associating with other drug users. The jury had

no reason to make such an inference. As it is commonly

understood, it is the poorer -users of drugs — those that

must share needles — that contract AIDS in that fashion.

That sort of inference would not reasonably apply to

Petitioner.

Fourth, the Magistrate Judge is unreasonable in

asserting that Petitioner’s testimony to the effect that

Susan knew “most of what was in his Fourth Step (RT

793), even before she actually read it, could have given the

O96

jury a reason to suspect that she new of his infidelities.

Even the prosecution at trial proceeded under the theory

that she did not know of Petitioner’s infidelities until the

night before her death. (RT 892(10-14), 944(7-13).) (The

prosecutor had also read Susan’s journal and knew she

lacked confirmation of infidelity.) Thus, it is unreasonable

to speculate that the jury would conjecture otherwise.

CONCLUSION

(AS TO GROUND #7)

In terms of the Brecht standard, Petitioner need not

prove that Petitioner’s credibility was inevitably destroyed

by the HIY test receipt. The Magistrate Judge suggests

that the jury “did not need to infer that (Susan] knew of

[Petitioner’s] contact with prostitutes”. (R&R, p. 34(26).)

The Magistrate Judge says the evidence “did not necessar-

ily incriminate Petitioner”, and that “the jury could still

have found [Petitioner] guilty” even without the receipt.

(See R&R, p. 35(2-7).) Crucially, the Magistrate Judge does

not contest that the credibility-busting inference was the

most likely one. Under these findings, the Court should

reverse. When a federal habeas court finds constitutional

trial error and is in grave doubt about whether the error

had a substantially injurious effect or influence in deter-

mining the jury’s verdict, the error is not harmless, and

the Petitioner must win. (O’Neal v. McAninch (1995) 513

U.S. 432, 432, 130 L.Ed.2d 947, 115 S.Ct. 992, 993.)

Having disposed of Ground #6 under the Brecht

standard, the Magistrate Judge summarily denied Ground

#7, which also cited trial counsel for negligence under

Strickland in failing to notice the receipt’s presence in a

wallet admitted into evidence, also on prejudice grounds.

O97

(R&R, p. 35(11-17).) Thus, in objecting to the former,

Petitioner has also objected to the latter. Notably, the

Magistrate Judge assumed that trial counsel was negli-

gent for failing to discover the receipt. (R&R, p. 35(17).)

A definitive explanation of the merits of Ground #7

can be found in the Memorandum of Points and Authori-

ties in Support of this petition and the Traverse.

OBJECTION #8

TRIAL COUNSEL WAS INEFFECTIVE

IN FAILING TO REQUEST CALJIC NO. 8.73

GROUND #8: PETITIONER’S SIXTH AND FOUR-

TEENTH AMENDMENT RIGHTS TO EFFECTIVE

ASSISTANCE OF COUNSEL WERE VIOLATED BY

ATTORNEY SMITH’S FAILURE TO REQUEST CALJIC

NO. 8.73 [RELATING EVIDENCE OF PROVOCATION

TO THE DEGREE OF MURDER].

The Magistrate Judge states:

Where the record shows that counsel deliberately

chose not to request a specific instruction, and

the record shows that the omission was reason-

able, ineffective assistance of counsel will not be

found. [Citation.] In the instant case, the record

indicates that both counsels and the trial judge

went over the instructions. (R.T. 888-89.) They

covered sequentially CALJIC Nos. 8.70, 8.71,

8.72, and 8.74. (Id.) This tends to suggest that

Trial Counsel examined CALJIC No. 8.73 and

chose not to use it.

(R&R, p. 36(5-11).)

First, trial counsel filed a Notice of Appeal admitting

three counts of ineffective assistance of counsel. (See CT

098

310-311; see also Exh. #13 to P & A in support of Second

Amended Federal Petition.) Given trial counsel’s dim view

of his representation of Petitioner, the Strickland pre-

sumption in favor of a defense attorneys conduct cannot

logically be applied to this case.

Second, the fact that CALJIC instructions on either

side of CALJIC No. 8.73 were discussed in the trial confer-

ence on jury instructions, does not support any meaningful

_inference. A mistake is a mistake because it is a mistake.

To say that the fact that CALJIC No. 8.73 was skipped is

evidence that it was intentionally bypassed is to adopt a

method of evaluating ineffective counsel claims which are

unassailable by the aggrieved party. By the Magistrate

Judge’s logic every person who ever skipped an item on

their grocery or other checklist, did so intentionally. These

matters should be handled by an evidentiary hearing, not

by speculation masquerading as legitimate inference. (See

Schell v. Witek, supra, at 218 F.3d 1027.)

Third, as the California Court of Appeal held, trial

counsel’s primary focus in summation was in persuading

the jury that the State had not proved deliberation. (See

Respondent’s Exh. #5, pp. 17-18.) CALJIC No. 8.73 by any

analysis, would have helped him in this goal. Why should

we assume that an error against the grain of his argument

was intentional? It certainly was not wise. (See Objection

#9, infra.)

The Magistrate Judge’s second line of attack on

Ground #8 was that:

Additionally, Trial Counsel strategically chose an

all or nothing approach in regard to sentencing.

Had Petitioner been convicted of second degree

murder he would have faced a possible sentence

O99

of fifteen (15) years to life, under Penal Code

§ 190, with no guarantee of parole given the facts

of this case. As the California Appellate Court

found, Trial Counsel’s decision not to ask for this

instruction so as to focus the jury on manslaugh-

ter was reasonable.

(R&R, p. 36(11-17).) Petitioner has several responses.

First, an “all or nothing approach” in this case was

inherently unreasonable — just as it was held to be in U.S.

v. ex rel. Barnard v. Lane (7th Cir. 1987) 819 F2d 798, ~

802-805. The idea that trial counsel could, as a legitimate

strategy, attempt to force the jury to choose between

manslaughter and first-degree murder cannot withstand

constitutional scrutiny. (Ibid.)

Second, the Magistrate Judge misquotes the Califor-

nia Appellate Court. That Court only opined that it was

“possible that defense counsel wished to focus the jury’s

attention fully on manslaughter”. (Respondent’s Answer

Exh. #5, p. 28 [CCOA Opinion].) This conjecture is unrea-

sonable because it conflicts with the unequivocal finding of

that same Court to the effect that “[t]he main focus of

defendant’s argument was that he did not plan, premedi-

tate or deliberate the killing of Susan”. (Jd., p. 17.) The

California Court of Appeal cannot reasonably be allowed to

have it both ways. (See 28 U.S.C.§ 2254(d)(2).)

Third, the Magistrate Judge seems to intimate that

there is no substantial difference between a 15-to-life

conviction and a 25-to-life conviction. Indeed, there is —

about 10 years difference. There is a greater difference

between the base term for first-degree murder and second-

degree murder than there is between manslaughter and

second-degree murder.

0100

Fourth, this conjectural “all-or-nothing” approach is

only reasonable to the extent that manslaughter appeared

to be a reasonably achievable verdict. The Magistrate

Judge’s sufficiency and prejudice analysis in the case are a

finding that it was not. (See R&R, pp. 31(24)-32(12),

39(27)-40(12) [i.e., Petitioner stated that he as not in fear

for his life, but rather was just trying to control his wife];

RT 146, 783-785 [Petitioner’s testimony].) Thus, the

speculative imputation of the “all-or-nothing” approach is

premised upon the idea, at least in terms of the Magistrate

Judge’s thinking, that trial counsel focused in folly on an

unobtainable object. The jury could have acquitted Peti-

tioner on a theory of accidental death, it could have found

for second-degree murder, and it did find murder in the

first-degree — but, it could not reasonably find manslaugh-

ter because there was no evidence of the sort of “objective”

provocation required by CALJIC Nos. 8.42 through 8.44.

Fifth, Petitioner describes how the position taken by

the California Court of Appeal, the Magistrate Judge, and

respondent as to Ground #8, unwittingly concedes both

prongs of Strickland, in Petitioner’s Traverse at pages

80(16) through 82. Petitioner asks that this reasoning be

incorporated herein by reference. In its essence, the

argument stated there is as follows: If the evidence of

provocation in the case was such as to raise a reasonable

doubt that the killing occurred during heat of passion as

defined by CALJIC Nos. 8.40/8.42-8.44, then the jury

would be duty bound to vote for manslaughter regardless

of whether CALJIC No. 8.73 was or was not given. The

idea that trial counsel could rationally commit his client to

a strategy based upon forcing a jury that was convinced

that this was a murder, that is to say an intentional killing

that occurred without “heat of passion”, to nonetheless

0101

find it to be manslaughter because they abhorred the idea

of finding for first-degree murder — as the law would then

require them to — is absurd. Distilled to its essence, the

Magistrate Judge and the others argue that trial counsel

could legitimately commit his client to a strategy based

upon jury nullification of first-degree murder through a

verdict of manslaughter when an available instrvction

would have given the jury a strong option of second-degree

murder. Remember, a belief in the likelihood that the jury

would, in light of CALJIC No. 8.73, find for second-degree

murder is the logical precursor to this whole “all-or-

nothing” strategy. Thus, shorn of all pretense, the Magis-

trate Judge’s position is untenable. (See this argument in

more detail at pp. 80-82 of the Traverse.)

OBJECTION #9

THE FAILURE TO INSTRUCT ON CALJIC

NO. 8.73 WAS PREJUDICIAL

GROUND #9: THE TRIAL COURT COMMITTED PREJU-

DICIAL ERROR AND DENIED PETITIONER HIS FIFTH

AMENDMENT RIGHT TO DUE PROCESS AND HIS

CONSTITUTIONAL RIGHT TO A JURY TRIAL IN FAILING

TQ INSTRUCT THE JURY IT COULD CONSIDER

PROVOCATION IN DETERMINING THE DEGREE OF

MURDER

THE MAGISTRATE JUDGE ERRED BY

SECOND-GUESSING THE CALIFORNIA

COURT OF APPEAL ON A MATTER OF THE

INTERPRETATION OF STATE LAW

The Magistrate Judge begins her analysis of Ground

#9 by resolving a point of state law contrary to the Cali-

fornia Court of Appeal. The Magistrate Judge notes that

Q102

Petitioner’s argument “appears to be supported by the

California Supreme Court’s decision in People v. Johnson,

6 Cal.4th 1, 42-43 (1993)” but that “the California Su-

preme Court’s decision in People v. Saille ... calls Johnson

into question.” (R&R, p. 37(106).) The Magistrate Judge

goes on to note that People v. Lee (1994) 28 Cal.App.4th

1724, 1734, [and] People v. Middleton (1997) 52

Cal.App.4th 19, 32-33 appear to follow Saille. (R&R, p.36-

37.) ;

Under Johnson the California Supreme Court held

that an instruction on provocation as mitigation of the

deliberation element of the mens rea for first-degree

murder must be given sua sponte. (Johnson, supra, at 6

Cal.4th 42-43.) The Magistrate Judge interpreted the

other three cases as saying that there was no such duty,

and that such an instruction must be requested. There is a

grave problem with this analysis.

The State Court of Appeal considered both People v.

Lee and Saille and ended up distinguishing them both:

A critical d

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