Metropolitan News-Enterprise


Wednesday, October 19, 2005


Page 1


Court Orders New Trial Because Judge Would Not Replace Lawyers

Ninth Circuit Panel Says Defendant Had Reason to Suspect His Counsel Had Betrayed Him


By KENNETH OFGANG, Staff Writer/Appellate Courts


A defendant who had reason to suspect that his lawyers had discussed his case with another suspect and disclosed confidential information to prosecutors was deprived of his constitutional right to counsel when the trial judge denied his request to appoint new attorneys, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel ordered that Lary James Plumlee, who is serving two consecutive life terms for murder and robbery in Nevada, be released or retried.

Senior Judge Betty B. Fletcher, writing for a divided panel, said that Washoe County District Judge Mills Lane—best known for having refereed championship boxing matches and presided over a courtroom-based television show after his retirement from the state bench—abused his discretion by denying Plumlee new counsel in the face of “an obvious and extreme conflict” that deprived him of meaningful legal assistance.

The Nevada Supreme Court’s ruling to the contrary, Fletcher said, “involved an unreasonable application of clearly established federal law.”

Judge Sidney Thomas concurred, but Judge Carlos Bea dissented.

“I fundamentally disagree with the majority’s presentation of the facts, their reading of the law, and their conclusion that the Nevada Supreme Court’s decision” meets the “unreasonable application” standard required to overturn a state court ruling by writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, the dissenting jurist wrote.

In moving for new counsel, Plumlee cited three incidents that occurred after the Washoe County Public Defender’s Office in Reno was appointed to represent him in 1991.

Lawyer and Suspect

Plumlee claimed that Shelly O’Neill, then chief deputy public defender, discussed his case with a good friend of hers who had been Plumlee’s roommate and a onetime suspect in the crimes with which Plumlee was charged. O’Neill allegedly suggested that the man retain a lawyer.

Plumlee also complained that David Allison, the first deputy public defender assigned to his case, lied to him about Allison’s plan to leave the office and become a deputy district attorney, and that Allison may have leaked information about the case to the prosecution. Plumlee also complained that Steven Gregory, who replaced Allison, had accused him of being “crazy.”

Gregory agreed with Plumlee that the attorney-client relationship had deteriorated to the point where the defendant had no faith in him or his office and would not cooperate. Requiring that the representation continue, Gregory said, would be equivalent to having no representation at all.

Lane denied the request and told Plumlee that he could either proceed with Gregory or represent himself, and Plumlee chose to do the latter.

Habeas Hearing

After the Nevada Supreme Court affirmed the conviction, saying Plumlee “never showed adequate cause justifying appointment of new counsel,” Plumlee brought a habeas corpus petition in state court. At an evidentiary hearing, Lane said he thought Allison was “out of line” and “unprofessional” and that O’Neill was “unethical” and created an appearance of impropriety by discussing the case with a suspect while her office was representing Plumlee.

But after Allison testified that he had not lied to misled the defendant and had not made improper use of anything he learned while representing him, and O’Neill testified she had not disclosed confidential information to her friend, Lane found both of them to be credible. While he also found that Plumlee truly mistrusted the Public Defender’s Office, he ruled that the Nevada high court decision on the issue precluded habeas corpus relief.

Fletcher, however, in her opinion for the Ninth Circuit, said that under the unusual circumstances of the case, Plumlee reasonably perceived that he had been betrayed and was “constructively deprived...of any meaningful representation as the Supreme Court has understood that term.”

Bea, dissenting said the ruling “bodes ill for our criminal justice system.”

He wrote that “[i]t will encourage criminal defendants to imagine a slew of conspiracies between their appointed counsel, the prosecution, or even the trial courts,” adding that defendants can claim an “objectively reasonable belief” in their suspicions even though they lack any proof.

The majority is “fashioning a new, unworkable rule which raises to constitutional dimensions a defendant’s unfounded suspicions and refusal to cooperate with his appointed attorneys,” Bea wrote.

Fletcher rejected Bea’s “dire predictions,” explaining that she and Thomas did not necessarily believe that Plumlee’s lawyers betrayed him, but were convinced that he believed it and that the perception was reasonable “in this unusual case.”

She added:

“The dissent also mischaracterizes our opinion as suggesting that a defendant’s

beliefs alone entitle him to new counsel. We have said nothing of the kind. What entitled Plumlee to new counsel was not the fact of Plumlee’s suspicions themselves (however reasonable) but the irreconcilable conflict these suspicions engendered.”

The case is Plumlee v. Del Papa, 04-15101.


Copyright 2005, Metropolitan News Company