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June 21, 2010

Ninth Circuit en banc habeas dissent assails state judge plea involvement as "judicial extortion"

Today the Ninth Circuit handed down a divided en banc habeas ruling in Murdoch v. Castro, No. 05-55665 (9th Cir. June 21, 2010) (available here), which upholds a California state conviction over a potent lead dissent authored by Chief Judge Kozinski.  Here is how that dissent gets started:

If it wasn’t for bad luck, Murdoch wouldn’t have no luck at all. He’s wakin’ up this mornin’ in jail when there’s strong proof he ain’t done nothing wrong.  I would certainly defer to a jury’s contrary verdict if it had seen this evidence and convicted Murdoch after a fair trial, presided over by a fair judge, followed by an appeal where the justices considered all of his constitutional claims.  But Murdoch had none of these.

Start with the trial judge: He was so worried that the prosecution couldn’t put on sufficient evidence to convict Murdoch that he sentenced Murdoch’s alleged confederate (Dinardo) to life in prison, but promised to give him a big break if he testified against Murdoch.  True to his word, right after Dinardo fingered Murdoch, and as Murdoch’s jury was retiring to deliberate, the judge rewarded Dinardo by reducing his life sentence to a walk-away twelve years — or, as Dinardo himself estimated, actual time served of about five years.

Put yourself in Dinardo’s shoes: You’ve just been sentenced to spend the rest of your days behind bars, never again to hold your infant daughter in your arms.  But the judge immediately dangles the promise of leaving prison and resuming a normal life before she turns eight, if only you help nail Murdoch.  Prosecutors are known to offer defendants a break if they testify truthfully against a co-defendant.  For a judge to goad someone he’s just given a life sentence into helping the prosecution by promising to give him his life back, but only if he helps finger the defendant, is judicial extortion. You’d have to be more than human not to do or say whatever it takes to grab that brass ring.

Not only did the trial judge strong-arm Dinardo into testifying, he prevented the defense from seeing — and so from using for cross-examination — a letter Dinardo had written a year earlier exculpating Murdoch and disclosing that the police had coerced Dinardo into making false accusations.

June 21, 2010 at 03:31 PM | Permalink


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I just love Kozinski's versatility whatever side he winds up on. Tashima writing the opinion denying relief?

Posted by: DaveP | Jun 21, 2010 4:31:55 PM

As I have said here a zillion times, better the whole truth than vindication of a privilege that winds up concealing an important part of the truth that the jury ought to have known.

The truth-finding function of a trial is paramount, and it makes no difference whether giving full force to that function favors the prosecution or defense in a particular case.

Posted by: Bill Otis | Jun 21, 2010 6:22:43 PM

I believe this is not "Judicial Extortion" and I disagree respectively. This was part of out justice system for as long as I can remember. It's called "Substantial Assistance" for a downward departure of a sentence.

Posted by: N/A | Jun 21, 2010 6:58:03 PM

This case is troubling. I think Kozinski's right.

Posted by: federalist | Jun 21, 2010 8:55:23 PM

I just read the opinion with one of my criminal defense atty friends and we both think Kozinski is right on. How come Alex isn't ever mentioned for Supreme court? I know he wasn't born here but that shouldn't matter.

Posted by: DaveP | Jun 21, 2010 9:08:09 PM

DaveP --

It wouldn't make any difference that Kozinski wasn't born in the USA; neither was Felix Frankfurter. Kozinski is slightly on the old side for the SCOTUS (he'll be 60 next month), but the major problem is that neither the Republicans nor the Democrats trust him. He can be self-involved and acerbic. And he had problems with some racy pictures on his website. He will not be going to the Supreme Court.

Posted by: Bill Otis | Jun 21, 2010 9:49:24 PM

Bill Otis
Yes,I agree. Just a wish. You have to admit he writes some very entertaining opinions no matter what side he is on. (Pinholster-cert granted). My atty friend here could not believe that Tashima wrote the majority opinion denying relief. Probably a good case for SCOTUS to hear.

Posted by: DaveP | Jun 21, 2010 10:03:26 PM

"but the major problem is that neither the Republicans nor the Democrats trust him."

How did he end up on the 9th circuit then? Souter had a powerful patron, but Kozinski?

Posted by: . | Jun 22, 2010 8:43:19 AM

Is anybody, with the possible exception of Kozinski, surprised by the ruling? Over the past three or four decades the signal has been sent again and again, loud and strong, it's all about convictions. And absolutely anything that furthers that interest, including "substantial assistance" bordering on extortion, is OK with our arch-conservative, genuflecting courts.

Posted by: John K | Jun 22, 2010 8:57:40 AM

I'm not sure we necessarily want someone on the Supreme Court who writes "entertaining opinions." I'd much prefer the Court be correct than amusing. Honestly, anyone who writes in a judicial opinion "[t]he parties are advised to chill" ought not be considered for the highest court in the land. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).

Posted by: J.D. | Jun 22, 2010 9:13:17 AM

JohnK --

The central reason the great majority of convictions get affirmed is that the great majority of defendants are guilty and were so proved by admissible evidence. It's not a conspiracy, as you would see if you weren't so in love with criminals.

For a man who can actually think, you are astonishingly Johnny One-Note.

Posted by: Bill Otis | Jun 22, 2010 9:37:22 AM

Honestly, anyone who writes in a judicial opinion '[t]he parties are advised to chill' ought not be considered for the highest court in the land. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002)."

I'd much rather have someone who wrote that on the highest court in the land than someone who cannot figure out that Ginsburg's dissent in the Ricci case was silent on the point of whether the Second Circuit should have been affirmed.

Posted by: federalist | Jun 22, 2010 9:45:51 AM

Here are the statistics on Federal criminal prosecutions: about 97% of those indicted plead guilty, and most are required in their plea agreements to waive the right to appeal (except in very limited circumstances) or file a 2255 Habeas Corpus Motion. In the 3% of cases in which a trial is held, the Feds win 3 out of every 4 trials. Only 5.2% of criminal appellants win anything on direct appeal, but in half of those cases, the defendant is resentenced to the same sentence he originally received, following remand. Thus, on a net basis, only 2.6% of criminal defendants achieve any relief (usually sentencing, not overturning the convioction itself) on direct appeal. These statistics should surprise no one, since the DOJ criteria for AUSAs provide that prosecutors should not try to indict anyone, unles they honestly believe that they have enough evidence to convict at trial, beyond a reasonable doubt. Nevertheless, in a system that prosecutes 80,000 + people per year, therre are still a few deeply troubling cases, such as this one.

I once saw a case in the S.D.W.Va.,Unitrd States v. Roger Damron, where the prosecution threatened to indict the defendant's 62 year old wife (who was a brittle diabetic) for conspiracy to commit money laundering, unless he agreed to plead guilty. The Government's agreement not ot prosecute her in exchange for his guilty plea was expressly set forth in his Plea Agreement, which she also signed! At his guilty plea colloquy, in response to the Judge's questions, the defendant admitted that he had no intent to steal the money when he took it from an investor, and that he had invested the money as promised, but lost it to a "con man". When asked about his apparant lack of criminal intent to commit mail fraud and money laundering, the defendant stated that he had been "willfully blind" to the possibility that the investment could really work out and that he was in part pleading guilty to save his wife's life. On that basis, the District Judge accepted his guilty plea. Mr. Damron has already finished serving his sentence and supervised release.

Posted by: Jim Gormley | Jun 22, 2010 10:24:59 AM

Bill writes: "The central reason the great majority of convictions get affirmed is that the great majority of defendants are guilty and were so proved by admissible evidence."

If that helps you sleep better at night, fine.

But this is what we know. The system's been rigged to make pleading guilty the only rational choice even for citizens who are innocent or wrongly accused.

We know, too, that many death-row inmates turned out to be innocent. If the authorities can screw up capital-murder cases, it's not unreasonable to assume lots of other mistakes are being made.

And since alleged extortion is a factor in this thread it's probably worth mentioning this. Virtually all who sign plea agreements live from that moment until they go off paper under the threat the sentence-reduction terms of their plea agreements (but not the pleas themselves) might be revoked if they claim innocence or complain about tactics used to compel their confession... (such as threatening to indict their diabetic, elderly wives on some bogus RICO charge if they don't confess).

Posted by: John K | Jun 22, 2010 11:48:34 AM

Judging is a separate, nearly unrelated profession from lawyering. The idea that amateurs should make $billion decisions and put people to death is likely from the frontier days, with their shortages of educated people.

Judging should be professionalized. Older people who have carried a burden of respknsibility from decision making should be screened for judicial temperament. Retired military sound adequate. They go to judge school for 2 years, where th emain them is, "Apply the law, don't make the law." They judge under supervision for one year. Then, they take a judge licensing examination and get licensed. Only licensed judges should be able to get appointed or elected, thereafter.

And then, judges may develop specialties by their experience. Experienced judges who have been promoted by their excellence should be allowed to be inquisitorial. I know the arguments against inquisitorial judges, and this example would support not allowing the change. If the judge cannot be trusted to be impartial in his inquisition, he should not be on the bench.

Posted by: Supremacy Claus | Jun 22, 2010 11:58:54 AM

The Supreme Court has repeatedly granted prosecutors absolute immunity from civil liability. Because of the low level of function of these lawyers, tort liability would help them improve their competence. People should be able to sue them for prosecutorial malpractice both for over-reaching and for failing to prosecute. A prosecutorial expert would testify and the oversight would be by peers and juries.

From a philosophical point of view, liability is a substitute for violence. Absolute immunity is a good moral and intellectual justification for violent self-help. Given their failures, and incompetence, the families of victims should consider starting a hunt club, where egregious prosecutor conduct gets straightened out with street justice. I have a feeling the enthusiasm of the police to investigate these will be lukewarm. Juries should nullify the charges against families seeking justice from these incompetents.

Beyond incompetence, I believe there is also intent. A murder takes 3 minutes. The prosecution of the murder takes 30 years. There is something fishy going on. The asymmetry is unjust. It is best explained by lawyer rent seeking. This is a synonym for armed robbery. If deadly force is justified in an armed robbery, then it should be justified in rent seeking. Try not paying your taxes, armed goons show up, and help you pay them.

Posted by: Supremacy Claus | Jun 22, 2010 1:47:39 PM

Federalist -

Where can I find those stats?

Law Student

Posted by: reachmike | Jun 22, 2010 6:16:40 PM

what stats? Or are you talking to SC?

Posted by: federalist | Jun 22, 2010 6:30:37 PM

John K --

Me: "The central reason the great majority of convictions get affirmed is that the great majority of defendants are guilty and were so proved by admissible evidence."

You: "If that helps you sleep better at night, fine."

My sleep is irrevlevant. Do you agree or disagree with my statement that
the central reason the great majority of convictions get affirmed is that the great majority of defendants are guilty and were so proved by admissible evidence?

"Virtually all who sign plea agreements live from that moment until they go off paper under the threat the sentence-reduction terms of their plea agreements..."

Yes indeed. When you sign a plea agreement you are expected to live by the terms you agreed to. How tragic.

"...(but not the pleas themselves) might be revoked if they claim innocence..."

Again, yes indeed. Once you state in writing, under oath and with the assistance of counsel that you are guilty, you will be expected to live by it rather than double back on your word. That is the way honest people conduct themselves. Do you have a problem with that?

"...or complain about tactics used to compel their confession... (such as threatening to indict their diabetic, elderly wives on some bogus RICO charge if they don't confess)."

Please cite the judicial finding that a prosecutor "compelled" a confession by threatening to file a BOGUS charge against a relative.

And just to be clear about it, this is my attitude: When a person intentionally commits a felony and admits it under oath, the preferred behavior thereafter, in a sober society, is contrition rather than complaint.

Posted by: Bill Otis | Jun 22, 2010 8:32:31 PM

As lazy, defeated government workers, many at will employees, crushed by their politically appointed and shady bosses, prosecutors take the easy path. They prosecute middle class people violating regs, mala prohibita, and confiscate assets in their confiscatory scheme. The illegal alien, paramilitary drug gang that beheads people who disrespect them go untouched by these lazy, incompetents. They allow violent and terroristic defendants to be nearly immunized. Once in a while, if a case makes the paper, they decide to do a little work, mostly to get their names in the paper for their future high paid defense firm application. For most, the prosecutor office is like a medical residency, the place to learn a specialty, then to move away to make big money.

Ask a former prosecutor defense attorney to counterattack the prosecution to protect his client, he will refuse. He needs to immunize these lazy government workers more than he needs any single client. These prosecutors know almost nothing will ever happen to them for their laziness, incompetence, immunization of violent repeat offenders. The Supreme Court has closed off civil liability, to the detriment of their competence.

When they do have the person, whatever the plea deal, it is unknown, what fraction of defendants are innocent. If one takes the one exoneration for every 5 executions as a rough guide, the innocence rate is likely to be far higher in lesser offenses. That is an appalling failure of the lawyer, a cult indoctrinated dumbass, using methodology from the 13th Century with oblivious immunity from any valid accountability. Given the atavism of their methods, they are doing OK. However nothing from the 13th Century would be acceptable in any other area of practice.

Posted by: Supremacy Claus | Jun 23, 2010 6:31:37 AM

The statistics I cited above come from the Bureau of Justice Statistics at the U.S. Department of Justice. I beleive you can find them easily if you make a Google search.

Bill Otis: The case I referred to involving the threat to prosecute the defendant's wife unless the pleaded guilt is found in United States v. Roger Damron, which was indicted in S.D.W.Va. in 1997 by then U.S. Attorney Rebecca Betts and AUSA Philip H. Wright. Roger Damron pleaded guilty in September 1997. The evidence may be found in his written plea agreement and in the transcript of his guilty plea colloquy with the U.S. District Judge, who accepted his "willful blindness" guilty plea.

Posted by: Jim Gormley | Jun 23, 2010 10:03:44 AM

works for me bill!

"Yes indeed. When you sign a plea agreement you are expected to live by the terms you agreed to."

Of couse it goes TWO WAYS how aobut the 100's of THOUSANDS of plea agreements in sex offence cases that have been ILEGALLY CHANGED AFTER THE FACT!

and continue to be changed AFTER the fact every 6-8 months every time another retard nazi politician get's an echo in their empty had and comes up with another law "FOR THE CHILDREN!"

Posted by: rodsmith3510 | Jun 23, 2010 2:48:18 PM

Bill asks, “… agree or disagree … the central reason the great majority of convictions get affirmed is that the great majority of defendants are guilty and were so proved by admissible evidence?”

No, I don’t agree.

Since only a handful of cases progress to trials (where “admissible evidence” can be tested), accepting such an assertion would require an act of blind faith. Maybe it’s true. I hope it’s true. I want to believe cops and prosecutors are right more than they’re wrong, but I don’t know for sure and neither does Bill.

From what I’ve seen, it’s anybody’s guess why judges sign off on (affirm?) plea agreements after fatuous, hallow rituals in which straight-faced judges ask if defendants’ confessions were coerced and defendants almost unfailing answer no.

Never mind the grotesque power imbalance and ruinous potential consequences that mark the circumstances under which these “agreements” are fashioned.

Citizens who hold out for trials face charge stacking (typically with vague, sweeping statutes concocted decades ago to bring down lawyered-up mobsters and drug lords). Defendants confront the near statistical certainty of conviction and the likelihood of draconian prison sentences. Their families must somehow come up with hundreds of thousands of dollars for legal fees. Then there’s the daunting task of surmounting any pro-cop/agent bias jurors bring to court. Ultimately, virtually everything defendants hold dear is on the line.

Weigh that against the plight of prosecutors and judges. Failing to compel plea agreements means extra work and the need to rearrange busy schedules. At worst, prosecutors risk some mild embarrassment if the impossible happens and they lose a game rigged so heavily in their favor.

And everybody, including judges, knows that’s how it works.

To speak about honoring “agreements” forged in such a manner as the gentlemanly, morally upright thing to do is nothing short of preposterous. It’s a power play pure and simple, and the government possesses nearly all the power.

In that atmosphere it becomes more difficult to discern who’s getting off easy and who’s getting rolled.

Posted by: John K | Jun 23, 2010 2:51:41 PM

JohnK --

You better believe there is an imbalance in plea bargaining. The prosecutor almost always holds the high cards.

What you don't understand is that the high cards consist of the facts proving the defendant's guilt. He did it, and the government is about to lay it all out to the jury, every bloody detail.

Only in your zombie world does adducing evidence equate with practicing extortion.

And yes, the prosecutor, as an officer of the executive branch, and working with the grand jury, determines the charges. Who else would you have do it? Defense counsel? MoveOn.org?

You just don't get it, do you? The reason the defendant is between a rock and a hard place is not government thuggery. IT'S THE EVIDENCE OF HIS OWN BEHAVIOR. When I was an AUSA, I had an open file policy -- not because the law requires it (it doesn't), but because I WANTED the defense to see what it was up against. Partly this was because I did not and do not view criminal litigation as a game to be won by a bunch of clever "moves." But partly it was because I thought it fitting to show defense counsel what a creep he had for a client.

I will be happy to say this under oath: The huge majority of defendants who plead guilty do so because, given what they know the government can prove, a plea agreement is their best option. The trial would lay it all out, which is not to their advantage. Better to have the nasty details appear as a summary in the plea agreement's Statement of Facts and the PO's report and let it go at that. Also better to portray one's self as having "accepted responsibility," which is a virtually automatic sentencing reducer whether or not the guilty-pleading defendant actually feels contrite (about what he did, not just that he got caught).

If you think sentences are too harsh, take it up with Nancy Pelosi and this most-liberal-in-fifty-years Congress. Don't take it up with me, and don't take it up with anyone who is currently a prosecutor. Prosecutors do not set statutory sentencing ranges (Congress does), nor do they impose specific sentences (judges do).

And yes -- when a defendant or his counsel (or anyone with whom I am dealing) gives his word in an agreement, he is bound to keep it. If he wants to go to trial instead, it's fine with me. Not one time in my career -- not once -- did I directly or indirectly discourage a defendant from going to trial. Trials are the method given in the Constitution for resolving felony charges, and that was, and is, good enough for me. I accept plea bargaining as a practical necessity (as did the Supreme Court in the 1970's case of Santobello v. New York), but I never particularly liked it and still don't.

Posted by: Bill Otis | Jun 23, 2010 6:15:24 PM

If all prosecutors were as honorable and decent as you and Grotius appear to have been, Bill, we probably wouldn't have a lot to talk about.

Regrettably not all of your former counterparts or successors rise to that standard.

For an indication I'm not the mindless critic (Johnny One-Note) of "the authorities," I'd urge you to check the "In praise of the US Sentencing Commission and hopeful about federal sentencing's future" thread in the June 19th blog.

Posted by: John K | Jun 23, 2010 6:55:06 PM

If you sign an agreement under extreme duress because charges have been stacked against you and you face a massive "trial penalty" that will result in a virtual life sentence upon conviction at trial, as opposed to some manageable term of years if you plead guilty, such that you cannot rationally choose to take the risk of an erroneous conviction, no matter the flaws/holes/mistakes in the government's case, then it is not at all clear to me that under principles of contract law or morality you should be "bound to keep" the promises made in that agreement.

I know this doesn't apply to all criminal cases -- hopefully, not even to the mine run of cases. But I agree with John K that it applies to enough cases that fair-minded people should be concerned. Bill Otis seems to think that John K's critiques need to apply to all or most cases in order to be valid, and therefore that we should discount any such complaints because the "great majority" of pleas are kosher. But really, the assertion that a "great majority" of defendants who plead guilty actually are guilty is not that reassuring. I mean, 65 or 70 or 75 or 80 percent could easily be considered a "great majority." I would be more comfortable with an "overwhelming, near unanimous" majority. And I'm not sure a statement like that would be defensible.

Posted by: Anon | Jun 24, 2010 1:26:54 PM

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