Because of all the initials for witnesses and crime victims, I had to literally draw a chart to try to figure out what was going on in this one.
Palmer and S.H. go to a bar, S.H. leaves, and Palmer flirts with C.S. and takes C.S. back to Palmer's room and they start having sex, except Palmer can't keep an erection. S.H. meets A.K. after leaving Palmer, and then they too go back to Palmer's room and start having sex, at which point C.S. joins and has oral sex with S.H. while A.K. has sex with C.S. while Palmer watches (unhappily), at which point Palmer kicks everyone out (except S.H.).
Clear?
It took me a little while before I even figured out everyone's gender, much less who did what with whom. (Except that, given the erection part of the opinion, I knew that Palmer was male. Plus his name was Joshua.)
Anyway, all this happens at the Chadwick Hotel in San Diego, which I've driven past many times and in so doing often wondered who would ever stay there, since it looks like a flop house. Now I know.
Only when I got halfway through the opinion did I realize that I already knew this story. Because it was reasonably high profile down here in San Diego, since Palmer then killed S.H., stuck her body in a suitcase, left it out for the trash, and it was found by bystanders. Made the news a lot. Though the whole sex preclude was left out (or at least left out of what I recall).
Mr. Palmer ultimately gets convicted and sentenced to LWOP, which is hardly surprising, particularly once you read Justice Huffman's opinion and discover all the conflicting (and absurd) stories that the defendant told the police and allegedly wanted to introduce at trial. Justice Huffman goes to great lengths to explain why the defense counsel's strategy -- which was to concede that Mr. Palmer killed A.H. but to claim that it was only manslaughter, in the heat of passion -- made total sense, as opposed to Palmer's (most recent) version of events, which no one in the universe was going to believe. (One of the particularly bad pieces of evidence were the deleted videos on Mr. Palmer's phone that showed him digitally penetrating S.H.'s anus and vagina after she was deceased.)
So everything about Justice Huffman's opinion makes sense.
Except maybe one thing.
Mr. Palmer's basic argument on appeal was that he's entitled to reversal because he told his lawyer that he didn't kill S.H. at all and yet the lawyer nonetheless admitted at trial that Palmer killed her. If so, yes, that requires reversal; a defendant is entitled to insist upon his factual innocence, and the lawyer can't take that decision away from him by arguing otherwise at trial.
Justice Huffman explains -- again, persuasively -- why Mr. Palmer's version of the facts is absurdly stupid, and why the defense lawyer (smartly) adopted the strategy she did. I also can't find anything in the various transcripts quoted in the opinion that suggests that, before trial, Mr. Palmer ever told the court (in connection with potential Marsden motions or anything else) that he was insisting on his innocence and yet the lawyer was nonetheless going to admit to the murder at trial. As far as I can tell, Justice Huffman's right that if there was a conflict like that, no one on the outside knew about it before Mr. Palmer was convicted. Which lends a lot of credence to the view that Mr. Palmer -- who's very keen on telling different stories at different times -- simply made up the story about instructing his attorney to maintain his innocence rather than admitting that he killed S.H. On that point, I feel very confident. If you ask which person I believe -- the defense lawyer, who said that she followed Mr. Palmer's (ultimate) instructions, or Mr. Palmer -- I definitely believe the defense attorney.
So does Justice Huffman, who distinguishes the otherwise controlling Supreme Court case on this issue by saying: "Unlike the defendant in McCoy, who
emphasized, both before and during trial, that that he wanted to proclaim his innocence,
there is nothing in the record that indicates Palmer told his trial counsel that he wanted to
assert his innocence before or even during trial. At most, he wanted to argue that the
victim died after a "taboo sex act" (erotic asphyxiation) went wrong. The record here
shows that when his attorney told Palmer that the evidence did not support such a theory,
Palmer relented, decided not to testify, and refused a Marsden hearing in the middle of trial when the court asked him if he wanted one."
But the thing is: While that's probably true, it's not what the record unambiguously shows. As the opinion itself concedes, "Palmer
asserted that a month before trial, he told his counsel he wanted to testify. According to
Palmer, counsel responded that it was his right to do so, but if he chose to testify, she was
not going to help him, and it would be his job to defend himself. He felt she had used
coercion and fear to force him to relinquish his right to testify and tell the truth." So it's at least Mr. Palmer's story that he wanted to testify and "tell the truth [sic]" about the alleged non-deliberate killing, his lawyer refused to permit him to do so (saying she wouldn't help him if he did so), so his desires to protest his innocence were frustrated.
Now, again, I have little doubt that the defense attorney's version is more credible, and that (as the opinion recounts) "In response to Palmer's accusation, defense counsel denied that she told Palmer
she would not help him if he wanted to testify. Instead, she asked Palmer to give her
notice if he planned to testify so she could prepare how best to handle it. According to
counsel, Palmer told her he would think about it and then called her later to tell her he was going to take her advice and not testify. At that time, she advised him again that it
was absolutely his right, and although she was in charge of strategy decisions, whether he
testified at trial was not one of them." Perfectly fine and perfectly ethical.
But it seems to me you have to decide who's telling the truth at an evidentiary hearing, no? Not just decide the thing on a stale paper record. Justice Huffman's opinion correctly notes that "Palmer only complained about defense counsel's
representation after the jury returned a guilty verdict." Yes, it's true he only complained about it publicly afterward. But if his version of events is believed, he told his defense attorney privately about his desires way beforehand. Just because someone only tells the world about something later -- whether it's trial strategy or sexual harassment or whatever -- doesn't mean it didn't happen, or that s/he didn't tell someone different (privately) earlier. Similarly, yes, Justice Huffman is right that Mr. Palmer "admitted to telling
his attorney multiple stories about what happened with the victim," and that he "conceded that he was not consistently telling his attorney that he was innocent and
wanted to present an innocence defense." But that you lied to your attorney at one point in no way waives your right to insist upon your innocence at trial. Maybe, for 12 months, I consistent tell my attorney: "Yes, I deliberately killed her, darn it, wish I hadn't." And maybe, two months before trial, for the first time, I suddenly tell my attorney: "Wait. No. I totally did not kill her. I was lying to you before. I want to assert my innocence at trial." The attorney can no way at that point say: "Tough. You once told me you killed her. So I'm going to plead guilty for you (or admit at trial that you killed her)." You -- the defendant -- get to decide whether or not to concede your guilt. Maybe -- probably -- you were lying the second time. But maybe you were lying the first time. Regardless, whether you killed the person is something the jury gets to decide, not your own attorney. If you want to say you are not guilty, fine, that's your right. Good luck with that. You're entitled to present that defense at trial, regardless of whether your lawyer thinks that's a great idea. It's your life on the line, not hers. (Put to one side whether the lawyer can put you on the stand to testify, since that's neither the issue here nor do we need to get into the thorny issue of how one "knows" that testimony is perjured or a defendant's right to testify via a narrative. The defendant indisputably still gets to control whether he pleads guilty and/or have his counsel admit the offense at trial.)
So, yes, the Court of Appeal is right that "this is not a case like McCoy where the defendant
emphatically insisted he was innocent and consistently told his attorney to argue such at
trial." But the rule is not that you have to "emphatically" insist on that right nor advocate for it "consistently". Yes, in the end, you've got to direct your attorney to do something, in terms that are not equivocal. But if I say, definitively, "No, seriously, I don't care what I said before, I'm telling you now: Don't admit that I killed her at trial," then that's what you've got to do.
And that's what Palmer says that he said. We certainly have a lot of reasons to disbelieve him. But I don't think that either the Court of Appeal or the trial court can properly decide who's telling the truth without putting both of the relevant witnesses on the stand and listening to their stories under oath. An event that, as far as I can tell, has not yet transpired. And which means we can't say for certain which version of the facts is right.
I'd be fine if the opinion said "So we can't tell what really happened here, since there was no evidentiary hearing, so we'll remand for one," or maybe even if it said "We're not saying what actually went down, for that, you can assert a claim on state or federal habeas, in which you'll be entitled to an evidentiary hearing, but for now, on appeal, you can't get relief." But the opinion casts itself much more categorically than this.
Which accurately describes -- very accurately, I suspect -- how any evidentiary hearing will almost certainly ultimately come out.
But you're entitled to one before someone says that what you've said is untrue and hence you're in prison for the rest of your life. Because if -- a big if -- what Mr. Palmer says is actually true was true, he's entitled to a trial at which his counsel does not concede that he deliberately killed the victim.
