Bradley v. Henry, 518 F.3d 657 (9th Cir. 2008)

In another display of naivetand inexperience in criminal trial practice, an en banc panel of the Ninth Circuit has reversed the 1999 conviction of Nicole Bradley; Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2008). By granting her petition for habeas corpus on a case previously upheld on direct appeal by the California Court of Appeal, the majority opinion omits relevant facts, or discounts their importance, and misinterprets the record. The court divided into five judges in the majority; four judges concurred only in the result; two judges dissented. In March 1999 a jury convicted Bradley of first degree murder, attempted car jacking and possession of a shortbarreled shotgun. The California Court of Appeal affirmed the conviction in Peo. v. Bradley, 2002 WL 596362 (unpublished) and the California Supreme Court denied review. In June, 2003 Bradley filed a petition for habeas corpus subsequently denied in U.S. District Court. In December, 2007, the Ninth Circuit reversed the District Court, and, unless the Supreme Court reverses the Ninth Circuit, the decision will compel another trial nine years after conviction. Unless the District Attorney can present the same evidence introduced at the original trial-unlikely from the trial record based on the probable unavailability of witnesses-a serious injustice will occur. To grant habeas corpus petitions the Ninth Circuit is bound by Supreme Court rulings that state court decisions in criminal trials must be objectively unreasonable in applying federal or U.S. Constitutional law, and federal courts must assign deference to state court fact findings; Carey v. Musladin; 127 S.Ct. 649 (2006);Lockyer v. Andrade, 538 U.S. 63 (2003). The Ninth Circuit majority ignores the California Court of Appeal decision, but Bradley is not about the law as much as the process of trial. In her petition filed in the Ninth Circuit, Bradley contended the trial court jeopardized her Sixth Amendment right to counsel. The Ninth Circuit court majority in citing the trial court record omits any reference to three lawyers originally retained-and discharged-prior to Bradley retaining lawyer Cynthia Dunlevy. The eighteen year old Bradleys father was paying her legal expenses but, in time, Dunlevy filed a motion asking the trial court for an in camera [closed] hearing to withdraw as counsel on grounds she had not been paid. In the hearing held outside the presence of Bradley, the court sealed the transcript of the proceedings for purposes of appellate review, granted the motion to withdraw and substituted attorney Chris Andrian, present during the hearing, to represent Bradley at public expense. The prosecution joined in requesting a closed hearing, asserting Bradleys father had retained an investigator to surveill and collect information about the prosecutor. The Ninth Circuit majority, ignoring the trial record that Dunlevy sought the closed hearing, and belittling the prosecution request for a closed hearing, deplores the absence of Bradley as violating her right to counsel. Quoting the majority opinion: . . . combining the substitution of counsel with airing the danger felt by the prosecutor was not explained except by the prosecutors sense that Bradleys father, who was paying for the expenses of trial, would go at lengths to delay trial. Not a word about the potential danger to the prosecutor or criticism of counsel for requesting a closed hearing. Months later, Bradley moved to replace Andrian, alleging she had filed a complaint against him with the State Bar and threatened litigation against him personally. The trial court refused to grant the motion and recommended Andrian seek indemnity from the County. After further delay to confirm indemnification, the County agreed but six weeks before trial another attorney (Jonathan Jordan) requested the court to represent Bradley. The court denied the motion on grounds a substitution of lawyers at this late date would likely result in yet another continuance. Contrast this truncated summary of the trial record with the dissenting judges documentation of the pre trial attempts by Bradley to obtain counsel. In March, 1996 attorney Montgomery represented Bradley whom the court subsequently disqualified. The majority opinion fails to note Montgomery was disqualified having previously interviewed a co-defendant and could not represent him and Bradley. Attorney Miller replaced Montgomery in June, and in October attorney Sacks replaced Miller (Nothing of this in the majority opinion). Bradleys father stopped paying Sacks who ceased representing Bradley. In November, 1997 attorney Dunlevy was retained and in March, 1998 she withdrew. At the closed hearing, attorney Andrian attended and the court appointed him at public expanse to represent Bradley. In October, 1998 Bradley moved to replace Andrian. The court denied the motion and specifically noted Andrian was effectively representing Bradley. In January, 1999 attorney Jordan requested the court to represent Bradley. The Ninth Circuit dissenting judges wrote: Jordan assured [the judge] he would be ready by the date appointed for trial (forty five days away) and was satisfied as to the arrangement for his compensation. . . [he saw] no reason not to be ready for trial and [didnt] see that changing at this point He similarly qualified his assurances about his financial arrangements with the client, noting that it [was] not a concern at this point. The trial court asked Bradley about her financial arrangements to pay Jordan and she replied, I dont know. The California Court of Appeal similarly wrote this comment about attorney Jordan and their earlier decision affirming the conviction: Given the magnitude of the accumulated materials, [twelve volumes] the paucity of Jordans preparations and the fact that the special circumstances [death penalty] allegation had not yet been dismissed, Jordans equivocal assurances of readiness were clearly inadequate. According to the Ninth Circuit majority, the closed hearing with attorney Dunlevy denied Bradley her Sixth Amendment right to attend at a critical stage of the proceedings. As a general rule, a defendant in a criminal case is entitled to be present at all times during the trial, with some unrelated exceptions. But attorney Dunlevy had filed a motion to withdraw. How could the presence of Bradley at the closed hearing affect any Sixth Amendment rights? If counsel moves to withdraw, the court cannot deny the motion unless it is unsupported by a declaration of non-payment of fees or filed on the eve of trial. Bradley had no part to play in the decision, the court substituted in another lawyer to represent her at public expense, and at no time during trial or subsequent to her conviction did she request an evidentiary hearing to rebut the content of matters discussed at the hearing. The prosecutor asked to participate at the in camera hearing based on evidence that Bradleys father had hired an investigator to surveil him and collect information. What role does Bradley play in that scenario? The prosecutor was not accusing her of complicity, and the failure to include her in the hearing was probably to avoid appellate criticism of the prosecutor. At no time did Andrian object to the closed hearing nor did the prosecution elicit evidence on paternal intimidation at trial. Bradley went through seven lawyers and the Ninth Circuit majority affixed blame on the trial court for sanctioning her non appearance at the closed hearing and the failure to appoint Jordan, her seventh attorney. The majority panel commenced its decision by noting it was not determining guilt or innocence. Yet the chances of successfully retrying Bradley are remote. Two of the witness who testified were accomplices and undoubtedly given reduced sentences. Either both remain in custody, in which case they can refuse to testify, or if at large the prosecutor may be unable to locate them. The tipoff to the majority reasoning is the language at the beginning of their decision: Bradley . . . was involved in an apparent car jacking . . . The shooting appeared to be unintentional . . . but the witnesses blamed [the killing] (emphasis added) on Bradley . . . she received a sentence of thirty five years to life. Characterizing the shooting as unintentional when someone carries a short barreled shotgun during an attempted car jacking is ludicrous. Because Bradley did not testify in her own defense, this judicial recital is gratuitous and subjective. The California Court of Appeals unanimously affirmed the conviction on identical grounds the Ninth Circuit reversed; the California Supreme Court denied review of that decision; the U.S. District Judge denied the petition for habeas corpus; a three judge Ninth Circuit panel who originally reviewed the case split 2-1; on appeal from that decision in the Ninth Circuit, three judges concurred in the result but only on grounds Bradley was denied her right to representation by attorney Jordan. With all these conflicts in the federal courts, the Ninth Circuit majority concludes the California Court of Appeal rendered an objectively unreasonable decision. Peo. v. Bradley, 2002 WL 596362 Bradley v. Henry, 413 F.3d 961 (2005) Bradley v. Henry, 428 F.3d 811 ( 2005) Bradley v. Henry, 432 F.3d 938 (2005) Bradley v. Henry, 2007 WL 4410355