Lawyer Who Led Police to Bodies Wasn't Ineffective

A lawyer who showed police the way to two of his client's murder victims was not constitutionally ineffective, the Ninth Circuit U.S. Court of Appeals ruled Wednesday. Holding that a clearly conflicted Oregon defense lawyer could have reasonably believed he was saving the two victims and preventing a crime from occurring, a divided three-judge panel concluded that an anonymous tip from him did not compromise his client's interests.

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A lawyer who showed police the way to two of his client’s murder victims was not constitutionally ineffective, the Ninth Circuit U.S. Court of Appeals ruled Wednesday. Holding that a clearly conflicted Oregon defense lawyer could have reasonably believed he was saving the two victims and preventing a crime from occurring, a divided three-judge panel concluded that an anonymous tip from him did not compromise his client’s interests. “This is a close case, even after we give the required deference to the state and district courts. The choices made by [Robert] McClure’s counsel give us significant pause, and, were we deciding this as an original matter, we might decide it differently,” wrote Judge William Fletcher. But the lawyer “did not violate the duty of confidentiality in a manner that rendered his assistance constitutionally ineffective,” Fletcher wrote. Senior Judge Warren Ferguson dissented. “While I am familiar with Strickland‘s mandate that we give deference to a defense attorney’s choices and judgment, I do not believe Strickland permits the total abdication of meaningful review that the majority’s analysis reflects,” Ferguson wrote. The lawyer “breached one of the most sacred obligations of the attorney-client relationship,” Ferguson wrote. Grants Pass attorney Christopher Mecca was contacted in 1984 by McClure’s family in connection with the shooting death of Carol Jones, a friend of McClure’s. Her two children were missing. McClure told Mecca where the children were through a series of bizarre ramblings during conversations over three days. McClure eventually drew Mecca a map after having told the lawyer at one point that Satan killed Jones but Jesus saved the children. At no point did Mecca ask McClure directly if he killed the children, or if he could take the information to the police. In later proceedings, Mecca testified that he felt McClure had implied his consent to go to the authorities. Mecca consulted other attorneys about his dilemma. He attempted to turn the information over to the state through a plea negotiation. And he never went to check the children’s possible whereabouts himself. He withdrew from the case as soon as the bodies were found. Though it was in some aspects critical of U.S. District Judge Ann Aiken’s decision to deny McClure’s habeas corpus appeal, the majority in McClure v. Thompson, 03 C.D.O.S. 2822, nevertheless deferred to her findings. On Wednesday, Mecca, who still practices criminal defense in Grants Pass, said he had every indication from McClure that he wanted the location of the bodies divulged. “He just wanted to talk about the kids,” Mecca said. “After all these years it remains surreal,” he said. “You know, you never learn this in law school.” He admits he never asked McClure point blank if he’d killed the kids, but felt he didn’t need to. “In real life, things don’t happen that way. This guy’s calling me and calling me.” Mecca said McClure’s actions and words stirred up “hysteria” in which he and McClure’s family believed the kids might still be alive. And though he says if he sat down and thought about it he would have concluded that they were already dead, “In your own mind you’re saying, ‘Could these kids be alive?’” In his dissent, Ferguson dismissed that belief as unreasonable and rapped the majority for failing to establish guidelines for the amount of investigation lawyers should do before breaching the attorney-client privilege. “As Mecca himself admits, it was a hope against all hope,” Ferguson writes. Mecca is still bothered by the affair. In recounting that the children were found about 60 miles from each other, both shot once in the head with a .44 caliber gun, Mecca pointed out that the 10-year-old girl was the final victim. “The last hour of the life of that little girl must have been excruciating,” he said. Aiken ruled that Mecca sought to prevent a crime by reporting the location of the children — Mecca was worried that the case could move from an assault or kidnapping to murder — and was therefore acting in his client’s interest. “That’s the exigent circumstance that required him to report,” said Kevin Neely, a spokesman for Oregon Attorney General Hardy Myers. The Oregon public defender who represented McClure could not be reached for comment. McClure is serving three consecutive 30-year-to-life sentences.

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