Thursday, September 16, 2021

Bolin v. Davis (9th Cir. - Sept. 15, 2021)

I'm seriously, honestly and sincerely confused by a portion of this opinion by Judge Bress.

It's a death penalty habeas case.  Defendant (Bolin) committed a high-profile multiple murder and was caught only after a well-publicized episode of America’s Most Wanted.  The trial's scheduled to be held in the county (Kern) in which the murders occurred, so there's a (quite legitimate) concern that jurors might be tainted by all the preexisting pretrial publicity.

Defendant's lawyer accordingly files a motion (prior to voir dire) to change the venue to a different county.  "In connection with his venue motion, Bolin submitted videotapes of the America’s Most Wanted episodes and newspaper clippings . . . . In particular, Bolin argued that the first episode of America’s Most Wanted included an inflammatory and misleading reenactment of his crimes."  Defendant also submitted a survey that showed that 20 percent of potential jurors had seen this program.

"The trial judge initially said he was 'very, very concerned' about the America’s Most Wanted program."  Understandably.  The trial judge also said that this program (and its allegedly inaccurate reenactment of the crimes) was his central -- indeed, only -- concern.  (He wanted to “make it perfectly clear, but for this reenactment on America’s Most Wanted, I do not think there are grounds to change the venue.”)

But, at that stage (remember, this is right before voir dire), the trial judge said he was at that point "not inclined to grant the motion to change venue,” and instead said that he'd “reserve ruling on” the venue motion, and "wanted to see the responses given by [the actual] potential jurors during voir dire."  Which, to be honest, seems reasonable.

When the actual prospective jurors get questioned, lots of them (consistent with the survey) say they saw the program, but also say (predictably) that they think they can be fair and judge the case on its merits.  At no point does counsel for defendant renew his motion to change venue.

The trial happens, defendant is convicted, and is sentenced to death.  He ultimately files a habeas petition that asserts that his counsel was ineffective for not renewing the motion to change venue.

So the question on federal habeas (after AEDPA) is:  Could a fairminded jurist reasonably conclude that counsel it was a "reasonable trial strategy" not to renew the motion to change venue?

Judge Bress says:  Yes.  Thereby affirming Bolin's conviction and death penalty.

I can see a lot of ways one might get to that result.  But the way that Judge Bress does it just doesn't seem to logically work.  (At least for me.)

Judge Brees makes two arguments for why the decision not to renew the motion wasn't ineffective assistance of counsel.  First, he says that renewing the motion wouldn't have succeeded (because the trial judge would have denied it), and hence the decision not to renew was a "reasonable trial strategy."

As a purely descriptive matter, I think Judge Bress is right that the trial judge was unlikely to grant the motion.  Sure, the trial judge "reserved ruling" on that motion until after voir dire, and said that he was profoundly concerned about the America’s Most Wanted show. But Judge Bress seems right when he says that given the judge's refusal to excuse for cause jurors who had watched this program, plus some other random comments by the judge during voir dire, it seems -- and I'm using Judge Bress' own words here -- that renewing the change of venue motion "stood little chance of success" (or, in other language by Judge Bress, "was unlikely to succeed").

But here's the thing:  "Unlikely" to succeed most assuredly does not mean "would definitely not succeed."  Remember:  We're only talking about a decision not to renew a motion (1) that counsel for Bolin had already made; and (2) that the trial judge had expressly "reserved judgment" on.  I agree that a reasonable jurist might conclude that, you know what, given the judge's comments, after voir dire, there was, say, only a 15% (or maybe even 5%) chance of success.

But the guy's life is at stake.  Even if there's a super limited chance of success, why not take the shot?!  It's not like it costs you anything -- you already made the motion.  The question is simply whether to say "Hey, judge, how 'bout that change of venue motion?  We're still up for it."  Yeah, probably, you'll lose.  But why not try?  Would YOU like your counsel to give it a shot if YOUR life was on the line?

Now, normally, you don't want to waste time, and you want to preserve your credibility with the jury, so you often (tactically) don't make arguments that you think are losers.  But time's not an issue; again, the lawyer's already made the motion, and it takes literally five seconds to just ask the judge to rule on it at this point.  Nor is credibility an issue:  it's an argument to the judge, not the jury, and it's not like the judge is going to go ballistic at you renewing a motion that he's expressly reserved judgment on, or to sentence your client to death simply because he's miffed that you renewed a motion that he said he'd be willing to decide after he took a look at voir dire.

In short:  There's zero downside to renewing the motion, and a possible -- albeit low -- upside.  It makes zero sense not to renew such a motion, particularly in a death penalty case.  It's somewhat akin to the failure to investigate possible mitigating evidence.  Sure, it might be a reasonable tactical strategy not to introduce such evidence at trial, but it's not a reasonable tactical decision to not even try in the first place.  You don't refuse to do things with zero downside.  Particularly when, as here, it costs you (and your client) absolutely nothing.

Now, if Judge Bress wanted to say that since a renewed motion was unlikely to be granted, there's no prejudice, that's be one thing; that might well be right.  But that's not what the opinion says.  It instead says that it was a "tactical decision" that a reasonable lawyer might make, not that there was a lack of prejudice.  That's not right, in my view.  Any reasonable lawyer would have renewed the motion, for there was zero downside in doing so (and real possible upside).  It's not a "tactical" call not to renew a motion that you've already filed, has no downside, has some upside, and a nonzero chance of success. (Judge Bress surely knows the difference between the "no deficient performance" and "no prejudice"  prongs of Strickland; indeed, later in the opinion, on a different point about mitigating evidence, he expressly relies upon a "no prejudice" holding with respect to that -- separate -- issue.)

So that part of the opinion seems just wrong.

Judge Bress then follows this conclusion with what purports to be a separate point -- an effort to argue that, yeah, there'd be a downside to renewing the motion.  (Judge Bress begins this part of the opinion by saying:  "Renewing the change of venue motion also carried considerable risks as well.")  He first says that counsel for Bolin didn't use all his peremptory challenges to excuse everyone who watched the show on America’s Most Wanted, and says (probably correctly) that "[u]nder California law, counsel’s failure to exhaust all their peremptory challenges is at the very least a 'significant' factor supporting the denial of a renewed motion to change venue."  Fair enough; as he's already explained, that reduced the likelihood of success of renewing the motion somewhat, albeit not to zero.  He then using these facts to say:  "But using all of Bolin’s peremptory challenges would have meant striking jurors that counsel thought could be favorable to Bolin, including jurors perceived as less likely to vote for the death penalty. Especially when the venue motion was unlikely to succeed, Bolin’s experienced counsel could have decided that knocking out potentially favorable jurors was not a wise strategy. Under AEDPA, Bolin’s defense lawyers were not required to pursue a change of venue motion at all costs."

That totally doesn't follow.  The core argument is not that Bolin should have used all of his peremptory challenges to strike jurors who might be favorable to him in order to slightly increase the chance of winning a venue motion.  Yeah, a reasonable lawyer -- indeed, most -- wouldn't have done that.  But that's not the argument.  The argument is that even if you kept all the "good" jurors on the panel, you should still have renewed the motion that you already made and that the judge "reserved judgment" on.  The alleged "tactical" decision to not strike the jurors is not the alleged deficiency.  What instead was the error was not renewing the motion.  Period.  For that, there's no reason offered other than "Well, it probably had a low chance of success."  So what?  Give it a shot.  No reason not to.  And the fact that it was reasonable to not strike favorable jurors isn't a refutation of that central point in the slightest.

Could Judge Bress have gotten to the result he wants by arguing the lack of prejudice?  I think so.  But that not what he does, and focusing instead on the deference we (admittedly) give to "tactical" decisions doesn't justify not renewing the motion here.

So, again, on this point, the opinion just doesn't make logical sense.  Better -- or at least understandable and rational -- to get there by arguing the prejudice prong, not as a matter of substantive deficiency.