Wednesday, September 10, 2014

Rudin v. Myles (9th Cir. - Sept. 10, 2014)

It's pretty bad when you've been charged with murder and your lawyer is so ill-prepared and incompetent that even the trial judge gets scared.  So scared, indeed, that he appoints a second attorney to "assist" the first one.

You're even more scared, I imagine, when you listen to your attorney's rambling opening statement at trial on your behalf and realize (alongside everyone else who listens to that speech) that it makes no sense and had "no cohesive theme".  Your attorney (you later discover) appears to be spending more time selling the media rights to his representation of you than he does on actually preparing for that trial.

You ask the attorney appointed to "assist" your attorney how things are going.  This is your counsel's opinion of your attorney at trial:  your representation is "a farce, and that disturbs me as an attorney. . . . This has become a sham, a farce and a mockery."

(Which perhaps reminds you of the following line from Arrested Development:
Michael:  "I'm not going to turn this mock trial into some sort of . . . .
GOB:  You were going to say 'mockery' weren't you?
Michael:  I was in trouble like three words into that.

You smile.  But your smile is fleeting.  Especially when you're convicted and sentenced to life in prison.

Things can't get much worse on the representation side, can they?

Oh, but they can.

Read the entire opinion for more.  But in the meantime, here's a snippet from the majority opinion.  Which, over the dissent of Judge Adelman (sitting by designation from the Eastern District of Wisconsin), denies habeas relief:

"We are troubled by the outcome of this case for many reasons. Margaret Rudin’s direct appeal and collateral review proceedings have been pending in either state or federal court for a combined total of 13 years. She has potentially meritorious claims that she has suffered prejudice at the hands of her own attorneys’ egregious misconduct. Yet she has never had an opportunity to present those claims in court.

Rudin’s defense counsel, Amador, indisputably engaged in egregious professional misconduct during the course of her underlying criminal trial. On direct appeal of her judgment of conviction, the Nevada Supreme Court acknowledged that Rudin’s trial was plagued not only with inadequacies on the part of defense counsel, but also with prosecutorial misconduct and legal error on the part of the State and the court.20 Although two members of the Nevada Supreme Court found the record sufficiently clear as to the “inherent prejudice created by [trial counsel]” to require immediate reversal of Rudin’s judgment of conviction, a majority of the court declined to address the effect of those errors, finding them more appropriate for resolution on collateral review.

But then, in her collateral review proceedings, Rudin was abandoned. Rudin’s first attorney filed nothing in any court on her behalf, and he also failed entirely to investigate her post-conviction claims. By the time Rudin requested and obtained substitute counsel, her state and federal limitations periods had already run, but nobody, not even the court, knew that to be true. And although the state post-conviction court, seeing the case as a “mockery of [its] promise to people who are in the criminal justice system that they will have an adequate defense,” initially granted Rudin relief, the Nevada Supreme Court reversed that court’s judgment, finding Rudin’s petition untimely and reinstating her criminal convictions. Now, for reasons that completely escape us and that remain unexplained by the record, Rudin’s current counsel failed to file a protective habeas application in federal court to preserve Rudin’s right to any opportunity for review that may have remained.

At this point, Rudin is still in prison, having served 13 years of her life sentence for murder. We know from the state post-conviction court that the State’s “proof of guilt [at that trial] was not a slam dunk by any stretch of the imagination.” We also know from the post-conviction court that, had Rudin been represented by competent counsel, the jury’s verdict may have been different. Thus, what we do not know is whether Rudin is lawfully imprisoned. And, regrettably, that is something we may never know.

The prejudice that Rudin potentially suffered at trial has only been compounded by the inadequacies of her attorneys on collateral review, who have now precluded her from having any chance at presenting her claims in federal court. Thus, if ever there were a case in which equitable tolling
should apply to soften the harsh impact of technical rules, perhaps this is that case. However, we are bound by AEDPA and the standards established under our caselaw and that of the U.S. Supreme Court, which circumscribe our power to grant relief to cases in which extraordinary circumstances–in
other words, abandonment–made it impossible for the petitioner to file on time."