Jacqueline Lowery v. Harold J. Cardwell, Superintendent, Arizona State Prison
575 F.2d 727
9th Cir.
1978
Check Treatment

*2 HUFSTEDLER, Before MERRILL and Judges, BURNS,* Circuit District Judge.

MERRILL, Circuit Judge: This habeas corpus appeal is before us for second time. The presents is that of accommodating a criminal defend- ant’s rights to fair trial and due with the duty of defense counsel to refrain from lending support to what he believes to be testimony. false Appellant charged by the State of Arizona degree with first murder. She pleaded guilty and trial was had to the jury. without a Testimony estab- lished that body victim’s had been car, found seated in his parked in front of a cafe. He had been shot twice at close range. The principal state’s witness testi- fied that he had seen walk to the car with the deceased and stand on the far side of the car —the driver’s side—while the deceased entered the car. Sounds similar to those of popping of fire crackers had then been heard. The testimony is dis- * Burns, Judge Oregon, sitting District Honorable James M. the District of designation. opinion ing in our ren- state greater length remedies sought cussed at habeas appeal. corpus in the District Court for the District dered Arizona. The writ was denied 547-48 appeal first to this court was taken. the stand and testified took then part as follows: addressed us was * * * absence at the time of testimo- “Q Sarge’s You heard *3 counsel’s motion to operated withdraw had him? walked outside with ny you that deprive process. to her of due The case was No, I didn’t. A remanded to the district court “with di- him? you walk out after Q Did rections to hold a hearing (1) the reasons A No. attorney’s withdraw, behind the motion to go to his car? you any at time Q Did (2) the detail of what during occurred the A No. conference, (3) reason, ‘off-the-record’ the him? Q you Did shoot any, why appellant’s attorney argue did not what? A Did I to the court her contention that she did not Q this man. Shoot decedent, (4) shoot the such other sub- shakes A head.] jects may [Witness be appropriate as to the discovery Q my question? understand you Do of what occurred during period under scrutiny.” 535 F.2d at 550. me did I shoot him. Yes. You asked A Q Yes. At the hearing on remand it was estab- No. sought A lished that counsel had to withdraw because he appellant lying; believed was so? Q You did do that for the same reason he had failed No.” A interrogate appellant argue further to or to requested a recess which then Counsel her assertion that she had not shot transcript The trial discloses granted. was deceased; nothing during that had occurred chambers, appellant being without that period except the off-the-record an inquiry following occurred: present, the long from the court as to how trial would put I’d like to “MR. LYDING: take. On the basis of this record the dis- withdraw. that I move to record again appellant’s trict court dismissed peti- your reason. THE COURT: State a .writ corpus. Supple- tion for of habeas state the reason. I cannot MR. LYDING: by transcript hearing, mented of that will Okay. The motion THE COURT: the case is back before us. record. denied. Off the In our judgment nothing occurred an off-the-record discus- [Whereupon, during off the record the chambers confer was sion held.]” appellant’s ence that rendered absence con stated that he had Back in court counsel stitutionally improper. subject The appellant. of In clos- no further purely proce off-the-record conference was the court he made no ing argument appellant’s presence dural and was not re testimony to the reference g.,E. Easley, United States v. quired. 505 accompanied that she had not effect 184,185 (9th 1974); F.2d Cir. not shot him. to his car and had deceased Williams, v. 361, (9th Cir.), 455 F.2d 365 the state’s case argued counsel that Instead denied, cert. 857, 140, 409 93 34 U.S. S.Ct. that if subject to reasonable doubt and Alper, United States v. (1972); L.Ed.2d 102 appellant that had court should find 1223, cert. (3d 1971), 1232 still the case was not one pulled trigger, denied, 988, 1248, 405 92 31 U.S. S.Ct. murder. degree of first (1972). process ques L.Ed.2d 453 The due appellant guilty tion that remains —one that on the The court found Supreme appeal expressly we refrained from reach degree murder. Court second withdraw, Lowery, affirmed. State 111 ing motion to of Arizona —is when it was under the circum- P.2d 54 After exhaust- made Ariz. existing, deprive ap- served to fact finder. From the testimony of then stances that we quoted, that have from trial. We conclude of fair pellant fact that the examination of did. abruptly point ceased at that request a presented is that recess, making from the of the motion counsel, in the when defense which arises to withdraw and counsel’s statement trial, forms the belief of a criminal course court that he could not state the reason for defense is based on false that his client’s motion, the only his conclusion that could proposi start with the basic testimony. We rationally be drawn was that circumstances, if, under these tion in the of her belief counsel had fact finder of his belief informs the falsely shooting denied the deceased. action, has, disabled the fact by he The result on these unusual facts is judging the merits of the de from finder principles inconsistent with the pro Further, he has fendant’s defense. responsibility fessional under ethical stan *4 opposition openly placed himself in to action they generally recognized dards as are to upon her defense. The conse his client day expose and does not counsel to a part of coun of such action quences charge of subornation of perjury. The sel, deprive are such as to judgment, in our American Bar Association Code of Profes a fair trial. If in the defendant of truth Responsibility only sional states that “In his (a perjury has committed the defendant client, representation of a a lawyer shall not case) in we do not know this she does fact * * * knowingly perjured use testimony right forfeit her to by that falsehood or false Disciplinary evidence.” Rule 7- fair trial. 102(A)(4). The ABA Defense Function then, presented, The is light Standards2 cast on the rule and deal to whether what here occurred amounted subject with the greater length, at although unequivocal announcement such an to they do not deal specifically with trial be deprive appellant fact finder as to of due judge jury fore a without a or with the case process. judgment In our it must be said surprised by where counsel is perjury in the judge, jury, that it The and not a did. course of examination of his client.3 subject (b) If, trial, 1. has been written on the Much before the defendant insists professional responsibilities counsel’s when testify falsely, that he will take the stand to perjury confronted client or intent to com- lawyer case, must withdraw from the if perjury, strongly mit and scholars differ feasible, seeking that is leave of the court questions presented. some of the See Wol- necessary. fram, Perjury, Client 50 So.Cal.L.Rev. 809 (c) If withdrawal from the case is not fea- (1977) (and However, therein). articles cited permitted or sible is not or if we feel that the ABA standards set forth during the situation arises the trial and the Project Justice, ABA on Standards for Criminal upon testifying falsely defendant insists Relating Standards to the Prosecution Function behalf, lawyer may his own not lend his (Approved and the Defense Function Draft perjury. aid to the Before the defendant 1971) (hereinafter the “Defense Function Stan- circumstances, takes the stand in these infra, dards”), rep- discussed can be said to lawyer should make a record of the fact that an authoritative resent consensus. taking against the defendant is the stand adopted by appropriate advice of counsel 2. The Standards were the ABA some man- Delegates designed revealing House of in 1971 and are to ner without the fact to the court. Wolfram, compatible lawyer be with the Code. See The must confine his examination to supra, identifying at 824. the witness as the defendant and permitting him to make his statement 7.7 of the Standards states: Section facts; lawyer trier or the triers of the “Testimony by the defendant. may engage in direct examination of the (a) If the defendant has admitted to his defendant as a witness in the conventional lawyer guilt facts which establish and the may argue manner and not later the defend- lawyer’s independent investigation establish- jury ant’s known false version of facts to the es that the admissions are true but the de- worthy may as of belief and he not recite or trial, right fendant insists on his to the law- rely upon testimony closing the false in his yer against taking must his client advise argument.” testify falsely. witness stand to Standards, brief, ap opinion would this integrity judicial —the when, in the course of require process to pear must be play allowed to a respecta- trial, surprised by is his client’s role; ble the concept of due must it. he should not act to advance perjury allow room for it. However, that he requirement there is no The distinction we draw is between a withdraw, since, trial, during seek to passive refusal to aid to perjury and Jend likely course is not to be feasible. such direct action as we find here —the sensibly to assume quite seem Standards addressing of pursuit the court in of court expected will to act in that counsel not be order granting leave to By withdraw. call- quandary to such a fashion as to disclose ing for judicial upon decision counsel’s the fact finder.4 motion in a case in which the judge served Thus it not follow from our does finder, as fact this conduct affirmatively holding passive that a refusal to lend aid and emphatically called the attention of the perjury in accordance what is believed to fact finder to the counsel was fac- Defense Function Standards would with the ing.5 view, In mere fail process. violate due our That this is an unhappy result cannot be pursue actively a certain course ure denied. Trial counsel is to be commended defense, ethically preclud which counsel is professional for his attention to responsibili- pursuing, cannot be said to actively ed from ty.6 can Nor criticism be at leveled constitute denial of fair trial. While a trial for his confidence in his ability juror, alert to the knowledgeable judge or to remain unaffected the motion to with- problems by attorneys faced *5 draw. We are acutely aware of the anoma- met, they traditionally in which are manner ly presented when mistrial must result from inaction, might perjury infer from counsel’s counsel’s bona fide efforts profes- to avoid appear in the clear and belief would not irresponsibility. sional We find no escape, unequivocal presented by manner the facts however, from the conclusion that funda- may many here. There be reasons for fail requisites mental of fair trial have been actively pursue particular ure line of irretrievably just lost. Whether a weighing competing result defense. And in engaged in ac nevertheless was reached values which we are would be a futile —the specified we at the outset of inquiry. commodation and irrelevant professional panel, ques- 4. An ABA which included then Circuit conduct is later Judge Burger, commenting Especially Warren E. in on a tioned. in a case tried to the 1966, hypothetical jury case submitted to antic- and even in a trial: “ * * * ipated the Standards on the judge if the trial is informed of the proper dealing method of with the client who situation, may unduly preju- the defendant * * * taking perjury. insists the stand to commit lawyer may diced feel he is Judge Burger states: caught protecting in a dilemma between him- lawyer’s by making prejudicing “If in those circumstances im- self such a record and by making mediate withdrawal from the case is either his client’s case it with the court. feasible, permit judge not withdrawal, or if the refuses to The dilemma can be avoided in most instanc- lawyer’s by making course is clear: He appro- es record some other may manner, engage priate example, by having in direct examination of his perjury. notation, client to facilitate known He should defendant subscribe to a file wit- nessed, asking possible, by lawyer.” confine himself to the witness to iden- another statement, tify himself and to make a but he ABA Defense Function Standards 7.7 § Com- participate mentary cannot the fraud conven- at 277. tional direct examination. Since this infor- 6. Problems of ethics are not before us. Our procedure mal is not uncommon with wit- requisites sole concern relates to the of due nesses, saying there is no basis for that this Thus, and fair trial. we do not reach jury lying. tells the A witness is such as the extent to which counsel may lay jurors infer that such is the case but satisfy testimony should himself that the of his will not.” false, client is or the extent to which he should Burger, Judge’s Standards A Conduct: passively refusing confer with his client before Viewpoint, 5 Am.Crim.Law Q. course, to lend aid to her defense. Of we do attorney may justifiably 5. The desire to estab- not condone such misconduct as a deliberate protection strategic causing lish a record for his own in the event and of mistrial. remanded with instructions Reversed issue, unless, within fifteen the writ good cause before the state shows

days, the why the issuance should be

district

delayed.

HUFSTEDLER, Judge, specially Circuit

concurring: disagree ma-

Although I do

jority’s process analysis, due I would rest petitioner’s

the decision on Sixth right

Amendment to effective assistance of petitioner sustained her bur-

counsel. proving that counsel failed to

den of render

reasonably effective assistance and that resulted in denial of fundamen-

failure (United (9th

tal fairness. States v. Elksnis 1975) 236.) Judge

Under the circumstances that Mer- describes,

rill when defense counsel moved withdraw, he ceased to be an active Despite

advocate of his client’s interests. concerns,

counsel’s his actions were petitioner’s

so adverse to interests as to

deprive her of effective assistance of coun-

sel. No matter how may commendable motives, counsel’s

have been his interest

saving potential himself from violation of client, canons was adverse to his *6 product

the end was his abandonment of a (Cf.

diligent defense. McKissick v. United (5th 1967) 754, 762.)

States F.2d HAWK, Petitioner-Appellant,

Richard E. CARDOZA, County,

Al Sheriff of Solano al., Respondents-Appellees.

et

No. 76-3367. Appeals,

United States Court of

Ninth Circuit.

May