9th Circuit Reversal of Murder Conviction Prompts Colorful Dissent

Ninth Circuit Judge Carlos Bea submitted a 40-page dissent countering what he called a "misguided" reversal of a murder conviction. The majority found the defendant should have been appointed a new lawyer after a series of conflicts with public defenders. Bea wrote that by allowing the defendant's distrust of his appointed attorneys to require a change of counsel, "the majority sets forth a rudderless, subjective rule for finding an 'irreconcilable conflict' between a criminal defendant and his counsel."

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Ninth Circuit Judge Carlos Bea wrote that he “respectfully” disagrees with a Tuesday opinion reversing a Nevada man’s murder conviction, but a quick look at Bea’s 40-page dissent brings other adverbs to mind. “I fundamentally disagree with the majority’s presentation of the facts, their reading of the law and their conclusion,’” Bea wrote in his opposition to Plumlee v. Del Papa, 05 C.D.O.S. 9082. Senior 9th Circuit Judge Betty Fletcher stirred Bea’s ire by writing — with Judge Sidney Thomas concurring — that a Nevada judge should have appointed a new lawyer for Larry James Plumlee after he had a series of conflicts with public defenders. “The resulting distrust that arose between Plumlee and his appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at all,” Fletcher wrote. Plumlee ended up representing himself at trial and was eventually convicted and sentenced to two life terms. By allowing Plumlee’s distrust to be an “irreconcilable conflict” requiring a change of counsel, Bea wrote, “the majority sets forth a rudderless, subjective rule for finding an ‘irreconcilable conflict’ between a criminal defendant and his counsel.” Perhaps it’s fitting that the contentious case originated in the courtroom of former Washoe County Judge Mills Lane III, best known as the boxing referee whose catchphrase — “let’s get it on” — kicked off dozens of boxing matches. Most notoriously, he officiated the 1997 fight in which Mike Tyson gnawed off a piece of Evander Holyfield’s ear. In the Plumlee case, Lane expressed clear discomfort with the defendant’s relationship with public defenders, most notably the fact that Plumlee’s roommate — and suspect in the murder — John Dewey was a close friend of Shelly O’Neill, the chief deputy public defender. Plumlee became convinced that O’Neill was leaking information to Dewey. “Because of Mr. Dewey and because of Ms. O’Neill’s relationship with Mr. Dewey and because of all the information that got wherever it got, I can understand why Mr. Plumlee felt like he did,” Lane said. “I doggone sure can.” But Lane said he was constrained from addressing that issue by an earlier Nevada Supreme Court review of the case. In addition to the friendship between his roommate and the defender’s office, Plumlee’s suspicion was stoked when he found that his initial defense lawyer was leaving to become a prosecutor, and that his second public defender suggested that Plumlee might need psychiatric treatment. In his dissent, Bea said the majority opinion relied too heavily on the defendant’s subjective beliefs. “The majority disregards the voluminous evidence suggesting Plumlee’s distrust was based on incidents that either did not occur or were fabricated by Plumlee,” he wrote. “We agree with the dissent,” said Victor-Hugo Schultze, the Nevada deputy attorney general who argued the case before the 9th Circuit. He said the state will likely petition for rehearing and an en banc hearing “based on the logic in the dissent.” Jason Carr, the assistant Nevada federal defender who represented Plumlee, said the opinion was a long time coming. “I’m just happy for Plumlee, that his rights were vindicated,” Carr said, adding that he expects more litigation in the 9th Circuit and perhaps in the U.S. Supreme Court. “This is one round in the battle, but it’s a good one to win,” he said. If the opinion were to be upheld, he said, his client could either walk free or get a new trial in Nevada. Neither prospect comforts Bea. “After 13 years, memories fade, evidence grows cold and witnesses disappear,” he wrote. If upheld, he added, the opinion would create “a new, unworkable rule which raises to constitutional dimensions a defendant’s unfounded suspicions.” “Accordingly,” Bea concluded, “with the utmost respect to my colleagues, but with the utmost regret for their misguided opinion, I dissent.”

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