Metropolitan News-Enterprise


Monday, January 30, 2017


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In Murder-for-Hire Case:

Ninth Circuit Dissenters Blast Overturning of Conviction




The Ninth U.S. Circuit Court of Appeals Friday denied en banc rehearing of a panel decision that overturned the conviction of one of three men implicated in the 1981 murders for hire of a Van Nuys woman and her young son.

The court’s vote to leave standing its Aug. 11 decision granting habeas corpus relief to James Edward Hardy drew a blistering dissent, joined by 10 of the 25 active judges. Judge Carlos Bea, who authored that opinion, said the panel failed to give the required level of deference to the California Supreme Court’s unanimous ruling that Hardy was not prejudiced by his trial counsel’s deficient performance.

Hardy was convicted, along with Clifford Morgan and Mark Reilly, of the first degree murders of Nancy Morgan, 44, and her 8-year-old son Mitchell in their Saticoy Street home. Prosecutors charged that Clifford Morgan, who stood to collect nearly $1 million in insurance benefits, hired Reilly, who in turn hired Hardy, and that the pair committed the murders after Clifford Morgan took a job in Nevada, perhaps to establish an alibi.

One of the prosecution witnesses, Calvin Boyd, testifying under a grant of immunity, claimed that Reilly tried to recruit him into the scheme. While he was interested and involved in the planning of the murders, Boyd testified, he dropped out of the plot because Reilly would not pay him in advance.

Boyd further testified that after the murders were committed, Reilly admitted that he and Hardy were the perpetrators.

All three defendants were convicted of first degree murder with special circumstances of multiple murder, murder for financial gain, and lying in wait. Reilly and Hardy were sentenced to death; Morgan was granted a separate penalty trial due to ill health but died of bone cancer before it could take place.

Hardy was also linked to the murders by witnesses who said he made statements suggesting his involvement, although he did not directly admit being involved in the actual killings.

In 2007, the California Supreme Court overturned Hardy’s death sentence, but upheld his conviction.

S.C. Opinion

In an opinion by Justice Kathryn M. Werdegar, the high court said Los Angeles Deputy Public Defender Michael Demby failed to present mitigating evidence that might have resulted in a lesser sentence, including evidence that Boyd likely committed the acts attributed to Hardy. Because such evidence might have resulted in jurors rejecting the death sentence for Hardy, the court said, he was entitled to a new trial as to penalty.

But a new trial was not required as to guilt, the court ruled. Werdegar said that at the very least, a reasonable jury would have found Hardy guilty of special-circumstances murder as a co-conspirator or as an aider and abettor, even if Demby had presented evidence of Boyd’s culpability.

Hardy was resentenced to life imprisonment without possibility of parole after prosecutors declined to retry the penalty phase. In August of last year, however, a divided Ninth Circuit panel said the conviction should have been thrown out as well.

Ninth Circuit Panel

Judge Stanley Bastian of the U.S. District Court for the Eastern District of Washington, sitting by designation, said the California high court erred in its application of the Strickland v. Washington prejudice standard.

“Although the California Supreme Court recited the Strickland standard, it concluded that because there was ‘substantial evidence’ against Hardy he suffered no prejudice from Demby’s deficient performance,” Bastian wrote. “This was not the correct standard, and consequently, the relevant question regarding prejudice at the guilt phase was never properly addressed.”

Instead, the correct standard was whether a reasonable probability existed that Hardy would not have been found guilty absent his counsel’s errors, Bastian said.

“We note that the California Supreme Court actually did address the prejudicial effect of Demby’s performance but only in relation to Hardy’s actual innocence claim—not as to his ineffective assistance claim,” Bastian wrote.

If Demby had discovered and presented the evidence against Boyd, it is not reasonable to think Hardy would have been convicted on a conspiracy or aid-and-abet theory, Bastian argued. He noted that Boyd was the only witness to place Hardy at the scene, and that there was no forensic evidence linking Hardy to the killings.

“Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime,” Bastian wrote. He was joined by Judge Harry Pregerson, while Judge Consuelo Callahan dissented, arguing that the later-discovered evidence implicating Boyd “did not blot out the substantial trial evidence establishing that Hardy conspired to commit, and aided and abetted, the murders.”

Bea, in his dissent Friday, said the panel majority “far…exceeded the limited scope of its review under” the Antiterrorism and Effective Death Penalty Act. Werdegar, he said, applied the correct prejudice standard, discussing in detail the evidence that Hardy was part of a broad plot to kill Nancy Morgan and defraud the companies that insured her life.

Werdegar, Bea argued, did not apply a “substantial evidence” standard to weigh the prosecution’s evidence, but used the term “to explain that extensive and compelling evidence supported the prosecution’s theory” that Hardy was guilty as an aider and abettor or a co-conspirator. The panel’s contrary conclusion, he said, “is not a fair reading of [Werdegar’s] opinion.

The evidence against Hardy was both “substantial” and “ample,” Bea said. He cited testimony from Hardy’s and Reilly’s then-girlfriends that the men spent considerable time in contact with one another in the weeks before the killings, and were together when Reilly got the final go-ahead over the phone from Morgan. Hardy’s girlfriend, the judge noted, testified that Hardy had detailed knowledge of the murders, that he received money for his participation, and that he tried to dispose of evidence linking him to the crime scene.

Bea was joined by Callahan, and by Judges Diarmuid O’Scannlain—who recently took senior status—, Ronald Gould, Richard Tallman, Jay Bybee, Milan Smith, Sandra Ikuta, N. Randy Smith and John Owens.

The case is Hardy v. Chappell, 13-56289.


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