# Appendix — Kurtz v. Ayers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1974%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 540 U.S. 949 ## Text Supreme Cout, U6. FILE® x03 23 ZAUC 12 2003 Jn The Supreme Court of the Anited States ¢ ROBERT M. KURTZ, Petitioner, V. ROBERT AYERS, WARDEN, Respondent. @ 4 On Petition For Writ Of Certiorari To The Court Of Appeals For The Ninth Circuit yy v 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 Ol 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 O2 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 10 10 13 18 19 21 21 24 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- 24 26 29 30 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 34 34 35 35 38 O6 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 O7 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 08 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 O9 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 86 89 90 90 010 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 Jefferson’s California Evidenc. 3enchbook (3rd Ed. RPE DGGE cnnvsssmimnssenientsgntien, iceaieleniad eine 4 Jefferson’s California Evidence Benchbook (3rd Ed. DONT) F GE secniexenstseisvintvenisinipiornmeeeiaaieanmaaens 4 1 Witkin, California Procedure, Attorneys (4th Ed. TIGR BS GUE scientists 5 LexisNexis, California Criminal Defense Practice, © 1 Fei ornrnncienidaanaaaee anneal 4,18 Liebman & Hertz, Federal Habeas Corpus Practice and Procedure (3rd Ed. 1998) §§ 26.2d, fn. 26, 33, BG, BD osesconsuinccnicissssdiitiesaneiaihibantdammaiaadaaaa Dr atiaiinielaenedn 19 Liebman & Hertz, Federal Habeas Corpus Practice and Procedure (3rd Ed. 1998) § 20.2c, fn. 47........... 43 ABA Compendium of Professional Responsibility Rules And Standards, Model Rules of Prof. Con- Ginet (IBGE, § 3D .nccuvnionitionmetaaammasonied 5, 18 ABA Model Code of Professional Responsibility, CANNON © sci coxicndssrcotenctaneineamadaagammamamaadnee 3,18 ABA Model Code of Professional Responsibility, Ethical Condideration EC 4-4...............cccccossscsscssssceees 3, 18 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 A. 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 a 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. 2. 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. B. 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 7 027 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. a 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 2. 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. 3. 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].) D. 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. E. 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 ‘ ¢ % Z $ 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 A. 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. C. 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. D. 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.) ee 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 A. 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: F 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. A. 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 | i | ] 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. B. 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 § ; z j j t 3 2 3 : | 3 = ; ; z i id 4 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. C. 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. D. 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. E. 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 x 3 3 g 4 z 4 g F ; 3 3 : 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. A. WAS TRIAL COUNSEL'S FAILURE TO PRESENT SUSAN’S DIARY NEGLIGENCE? 1. 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. 2. 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 b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1974%3A2. Public record. Not legal advice.