Several notable wins, and even a notable loss, are had this edition.

The Oklahoma Court of Criminal Appeals inJames Allen Coddington v. Statevacates a death sentence due to multiple penalty phase errors. The chief error found by the Coddington Court is the trial court's exclusion of a videotaped examination of Coddington's mother during the penalty phase. Also, the trial court erred in its instruction on impeachment by prior conviction in the penalty phase as it improperly limited the ability of the jury to consider mitigation evidence proffered by the defendant.

The Arizona Supreme Court has commuted the death sentence of Frank Silva Roque. Roque instantly became infamous worldwide for the mindless murder four days after Sept. 11 of Balbir Singh Sodhi, a Sikh gas station owner whom he mistook for an Arab. In inState v. Frank Silva Roquethe Arizona Supreme Court unanimously agreed, however, that Frank Silva Roque's mental illness and low IQ were mitigating factors and should have resulted in the lesser sentence of life in prison with no chance of parole. "We have such a doubt in this case, and therefore conclude that the death penalty should not be imposed," Vice Chief Justice Rebecca White Berch wrote. "Because of the serious nature of Roque's crimes, however, we conclude that he should be imprisoned for the rest of his natural life and never be released."

Pennsylvania death row inmate Hubert Michael has for some time left the federal courts perplexed, is he volunteer,or isn't he, and does he remain competent to decide the answer to that question? The latestThird Circuit opinionin this saga has it remanding for further factual development inHubert L Michael v. Horn.

The California Supreme Court has finally issued an opinion inPeople v. Fermin Rodriguez Ledesma. The term "finally"is used as this a direct appeal for a resentencing trial that occurred in 1989, or roughly 17 years after the death sentence was imposed. Although the case is clearly a loss there is a fairly important holding here that where a petitioner wins on a claim of ineffective assistance of counsel any information revealed from the prior attorney-client privilege can not be used at retrial.

In the news, Gerald F. Uelmen had thisarticlein a recent issue of the San Francisco Daily Journal reflecting on the ten-year anniversary of Ronald George becoming Chief Justice of the California Supreme Court and noting that his tenure has seen a growing backlog capital case appeals. Oklahoma has a new lethal injection protocol according topress accounts.Kenneth Phillips, Jr.was sentenced to a term of 53 years to life in prison for the murder and sexual assault of Kim Ancona in Arizona - the crime for which Ray Krone was convicted and sentenced to death in 1992. The Commonwealth of Virginia has indictedKenneth Maurice Tinsleyfor the 1982 capital murder of Rebecca Lynn Williams - Earl Washington was convicted and sentenced to death for the same murder but was eventually exonerated by DNA.

New scholarship is noted.Craig Cooley(federal defenders, Las Vegas-CHU) offers "Mapping the Monster's mental Health and Social History: Why Capital Defense Attorneys and Public Defender Death Penalty Units Require the Services of Mitigation Specialists," 30 Okla. City U.L. Rev. 23 (2006), which provides support for the very rudimentary argument "that public defender death penalty units and privately appointed capital defender attorneys should employ mitigation specialists" (link above may vary from that which appears in the law review).Corinna Lain (University of Richmond Law) haspublished to SSRN"Furman Fundamentals" to be published in the Washington Law Review, which does a nice job of laying out the legal and political environment that preceded Furman.Jack Balkin (Yale Law) hasAbortion and Original Meaningnow available onSSRNand if you deal with constitutional "theory" or "policy" perspective you owe it to yourself to read it, or at least the first two sections, of that work (or so it is claimed). Finally, Dionne DeNunzio offersNote, Roper v. Simmons, 32 Ohio N.U.L. Rev. 369 (2006), which offers (yet another) overview of Roper (link to pdf of first page of law review article).

There was a book that came out earlier in the summer I meant to plug and realize I failed to,Guantanamo and the Abuse of Presidential Powerby Joseph Margulies. Joe was the lead lawyer for Shafiq Rasul in Rasul v. Bush, though he was actually released before the Supreme Court issued its decision. Margulies also represented Mamdouh Habib, an Australian citizen who was "extraordinarily rendered" to Egypt and tortured for months before being transferred to Bagram and Guantanamo.

Looking ahead to the next edition, numerous cases are noted including a published Fifth Circuit case,In Re Henderson(James Lee Henderson), granting a Motion for Authorization to file a successive federal habeas petition on an Atkins / mental retardation claim. The Fourth Circuit inDerrick Walker v. Kellyremands for a hearing on a fairly substantial Brady claim.

The links for the briefs in Taylor v. Crawford in last week's email edition should have been:Appellee,Appellant, &Reply.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/060821.htm.

Recent Executions

August

24 Justin Chaz Fuller (Texas)

Scheduled Executions

August

28 Elijah Page (South Dakota--vol)

29 Eric Patton (Oklahoma)

31 Derrick Frazier (Texas)

31 James Malicoat (Oklahoma)

September

12 Farley Matchett (Texas)

19 Daryl Holton (Tenn---volunteer)

20 Clarence Hill (Florida)

25 Pedro Sosa (Texas)

More Execution information

In Favor of Life or Liberty

Hubert L Michael v. Horn, 2006 U.S. App. LEXIS 21218 (3rd Cir 8/18/2006) After finding Hubert Michael competent to terminate his habeas corpus petition the "District Court dismissed that petition. The dismissal was appealed, purportedly on Michael's behalf. He later vacillated on his desire to dismiss this appeal." Remand ordered as "the presumption of continuing competency does not apply here because the foundational expert for the District Court's competency finding has suggested a new evaluation."

James Allen Coddington v. State, 2006 Ok Cr 34 (Okla. Crim. App. 8/16/2006) Relief granted on exclusion of video submitted in mitigation, as well as on an instruction regarding impeachment by prior conviction as it improperly limited the ability of the jury to consider mitigation evidence proffered by the defendant.

State v. Frank Silva Roque, 2006 Ariz. Lexis 102 (Az 8/14/2006) Appellant's mental illness and low IQ were mitigating factors and should have resulted in the lesser sentence of life in prison with no chance of parole. "Because of the serious nature of Roque's crimes, however, we conclude that he should be imprisoned for the rest of his natural life and never be released."

Favoring Death

Darrell Grayson v. King, 2006 U.S. App. LEXIS 21215 (11th Cir 8/18/2006) Dismissal of 42 U.S.C. § 1983 affirmed. Grayson sought "post-habeas access to biological evidence presented at his capital murder trial so that he can subject the evidence to DNA testing."

People v. Fermin Rodriguez Ledesma, 2006 Cal. Lexis 9521 (CA 8/17/2006) Relief denied on numerous claims. Most notably, however, the Court holds that where a defendant wins on a claim of ineffective assistance of counsel any information revealed from the prior attorney-client privilege can not be used at retrial. Also of note is the finding of an intent to rob formed only after death can only be theft. [Findlaw& theSCOCbloghave more.]

State v. Tracy Allen Hampton, 2006 Ariz. Lexis 104 (AZ 8/15/2006) Relief denied on claims including: (A) death qualification of jurors; (B) applicability of the fetal manslaughter statute; (C) retroactivity of new capital statute; (D) separate juries for the guilt and penalty phases; (E) constitutionality of the “especially heinous, cruel or depraved” aggravator; (F) preclusion of defense expert's testimony after Hampton refused to cooperate with the state's expert; (G) testimony of ex-girlfriend as to past prior violent acts; (H) "presumption of death" in statue; (I) instruction on sympathy / prejudice; and (J) victim impact.

State v. Leroy Dean McGill, 2006 Ariz. Lexis 103 (Az 8/14/2006) (dissent) Relief denied most notably on whether the Confrontation Clause of the Sixth Amendment applies to the penalty phase of a capital sentencing proceeding and that testimonial hearsay can be used to impose a death sentence.

People v. Walter Joseph Cook, 2006 Cal. Lexis 9519 (CA 8/14/2006) Relief denied over claims relating to: "1) a motion to sever; 2) three strikes; 3) speedy trial; 4) a motion to disqualify the trial judge; 5) an inadequate record; 6) discovery violations; 7) concession of guilt without advisements and waivers; 8) preservation of evidence; 9) juror questions; 10) prosecutorial vouching; 11) jury instructions; 12) trial court's questioning of witnesses; 13) torture murder; 14) a verdict form; 15) leading questions by the prosecutor; 16) prosecutorial misconduct; 17) cumulative error; 18) admission of evidence; 19) aggravating and mitigating circumstances; 20) denial of mistrial; 21) a Pitchess motion; 22) challenges to the state death penalty law; and 23) an automatic motion to modify". [Synopsis fromFindlaw.]

Michael Edward Hooper v State, 2006 Ok Cr 35 ( Okla. Crim. App. 8/16/2006) Waiver of presentation of mitigation, waiver of a penalty phase jury to determine life or death, and waiver of direct appeal from sentence of death affirmed.

Selected Excerpts from, & Commentary on, this Edition's Cases

Hubert L Michael v. Horn, 2006 U.S. App. LEXIS 21218 (3rd Cir 8/18/2006) After finding Hubert Michael competent to terminate his habeas corpus petition the "District Court dismissed that petition. The dismissal was appealed, purportedly on Michael's behalf. He later vacillated on his desire to dismiss this appeal." Remand ordered as "the presumption of continuing competency does not apply here because the foundational expert for the District Court's competency finding has suggested a new evaluation."

The District Court found Michael competent in its 2004 opinion. Normally, we would presume that Michael's competency continues to the present. See, e.g., Lonchar v. Thomas, 58 F.3d 588, 589 (11th Cir. 1995) (per curiam); Smith v. Armontrout (Smith VII), 865 F.2d 1502, 1505 (8th Cir. 1988) (en banc). But the presumption of [*21] continuing competency does not hold if "some substantial reason to the contrary appears." Smith VII, 865 F.2d at 1505.

We believe that such a "substantial reason" appears here. In the District Court proceedings, Dr. Wettstein's role was particularly important; his report and testimony were the bases for the District Court's competency finding. The Court expressed high regard for Dr. Wettstein in its opinion, calling him "exceptionally well-qualified," and stating that "[t]here was no evidence of possible bias on [his] part" and that "[t]here can also be no dispute about [his] qualifications." Michael, 2004 U.S. Dist. LEXIS 3702, 2004 WL 438678, at *20. But Dr. Wettstein subsequently has thrice taken the position that Michael should be reevaluated. As noted above, after learning of Michael's desire to pursue this appeal, he wrote in June 2004 that "it is my psychiatric opinion that Mr. Michael's mental state needs further exploration. His representation that he wishes to litigate his criminal conviction and death sentence should be evaluated." In January 2006, Dr. Wettstein wrote again, stating that, because of Michael's vacillations, a concern had been raised "as to [*22] whether any waiver of his appeal of his death sentence is valid and voluntary. My previous report to the District Court was premised in part on his apparent steadfastness[,] which has now dissipated." He wrote a third time--in February 2006--to suggest "further evaluation." This second-guessing by the expert who was the foundation of the District Court's competency finding constitutes a "substantial reason" not to presume continuing competency here.

The result in Smith VII is not to the contrary. There, Smith had changed his mind about whether he wished to pursue his habeas proceeding, apparently because he had gotten married. Smith VII, 865 F.2d at 1504. The en banc Eighth Circuit Court held that his change of position did not warrant reopening proceedings for the purpose of holding an additional competency hearing. Id. at 1506. The Court cited for support the conspicuous absence of "any allegations of new psychiatric examinations or new conduct by Smith, other than the facts of his marriage and his changes of mind." Id. at 1504. Although affidavits from three psychiatrists supporting reassessment were before the Court, [*23] these did not suffice either. N one of these psychiatrists had ever examined Smith, they had all used language that was "carefully hedged and tentative," and the Court considered the dispositive issue to be "one of common sense and good moral judgment" rather than "of medical expertise." Id. at 1505.

But here Dr. Wettstein has examined Michael, and thoroughly. Moreover, Michael's previous steadfastness had been a key basis for Dr. Wettstein's conclusion of competence. Dr. Wettstein has not now declared Michael incompetent, but he has called for a new evaluation, in language that is neither hedged nor tentative. The principal source for the District Court's competency finding has wavered based on Michael's post-evaluation conduct. We therefore do not apply the presumption of continuing competency to the District Court's 2004 finding.

An appeal may not be withdrawn if the prisoner is incompetent. See id. at 1506-07 ("If someone decides that he or she prefers to acquiesce in a presumptively lawful judgment of a court, this decision should be respected, unless that person's mental condition is so abnormal that it does not meet accepted legal requirements. [*24] "); cf. Rees v. Peyton, 384 U.S. 312, 313-14, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966) (per curiam) (requiring a prisoner's competency to be determined before deciding whether to allow a prisoner to withdraw his certiorari petition); Hammer, 226 F.3d at 232 & n.2 (noting that we were satisfied with Hammer's competency before granting his motion to dismiss his appeal). In Rees v. Peyton, the Supreme Court faced the question of how it should proceed when Rees, who had been convicted of murder and sentenced to death, directed his counsel to withdraw his petition for certiorari and to forgo any further federal habeas proceedings. 384 U.S. 312, 86 S. Ct. 1505, 16 L. Ed. 2d 583. Rees's counsel advised the Court that "he could not conscientiously accede to these instructions" without Rees's receiving a psychiatric evaluation. Id. at 313. Rees was examined, but experts did not agree on whether he was incompetent. Id. The Court concluded that the District Court had to make a determination regarding Rees's competency before it could make a decision about the certiorari petition. Because his "mental competence [was] of prime importance" to the question [*25] of whether withdrawal would be allowed, the District Court was directed to "make a judicial determination as to Rees' mental competence and render a report on the matter to [the Supreme Court]." Id. at 313-14. The Court further directed the District Court to determine whether Rees "ha[d] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he [was] suffering from a mental disease, disorder, or defect which may substantially affect his capacity." Id. at 314.

If we have any doubts about Michael's competency, Rees requires us to remand to the District Court for another competency hearing before we dismiss his appeal. Dr. Wettstein's letters do give rise to doubts about Michael's competency; thus we remand to determine if Michael is competent to make the decision to dismiss the appeal. Upon the District Court's making its determination, it should send us its report on the issue setting forth its conclusion and the reasons for it. If Michael is again found competent, and if he again wishes to withdraw his appeal, then we must obey his wishes. [*26] Cf. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (noting that an "accused has the ultimate authority" to decide whether to "take an appeal").

We therefore remand this matter to the District Court for another competency hearing. By doing so, we do not rule on whether to dismiss this appeal or on the 21 U.S.C. § 848(q)(4)(B) issue. n11 Michael has indicated that he wants Cosgrove as his attorney, and Cosgrove's continued representation is permissible on remand without an order from the District Court.

We note that, if Michael is again found competent, he will have one last opportunity to have his appeal heard. Accordingly, the District Court, if Michael is found competent, should ask him the following question: "Do you wish the Court of Appeals [*27] to dismiss the appeal taken in your name from the order entered in this Court dismissing the habeas corpus petition filed in your case?" If the answer is yes, we shall abide by that answer and dismiss the appeal.

James Allen Coddington v. State, 2006 Ok Cr 34 (Okla. Crim. App. 8/16/2006) Relief granted on exclusion of video submitted in mitigation, as well as on an instruction regarding impeachment by prior conviction as it improperly limited the ability of the jury to consider mitigation evidence proffered by the defendant.

[*P90] The sentencer in capital cases should not be precluded from considering any relevant mitigating evidence. Skipper v. North Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986). Hood's videotaped examination showed her demeanor - it showed her distress and sadness she had for her son in a way that the cold reading of a transcript could not portray. The witness's demeanor in this case is exactly the type of evidence that might invoke sympathy for a defendant facing the death penalty. [**73] .Sympathy is proper for the jury to consider in assessing punishment. See Salazar v. State, 1998 OK CR 70, P42, 973 P.2d 315, 328. Prohibiting the jury from receiving evidence in the form likely to invoke sympathy and achieve the purpose of this mitigation witness was improper. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We cannot determine how the jury would have viewed Hood's testimony if it had actually seen her videotaped examination. However, the potential error would be of constitutional magnitude. The only proper remedy is to remand for a new sentencing hearing with an instruction that the new jury specifically be allowed to see Hood's videotaped examination.

[*P91] The error identified in Proposition Fourteen also warrants discussion and contributes to our decision to reverse Coddington's sentence of death and remand for resentencing. In Proposition Fourteen, instructional error in the sentencing phase allowed the jury to disregard relevant mitigating evidence in violation of Lockett v. Ohio and its progeny. Upon the State's request, the trial court gave the Oklahoma Uniform Jury Instruction on impeachment [**74] of witness by former conviction. See OUJI-CR 2d. 9-22. Specifically listed in that instruction were defense witnesses Gayla Hood, Mike Hood, Tommy Coddington, Walter "Duffy" Coddington, Ricky Coddington, and Kathy Johnson. Coddington relied upon these family witnesses and their own troubles with the law and addiction to help explain Coddington's background, addiction, and criminality. Defense counsel did not object to this instruction. The trial court's decision to give the impeachment instruction as it related to his family mitigation witnesses effectively recharacterized their testimony as impeachment evidence and precluded the sentencer from properly considering their testimony. We find plain error.

[*P92] In Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65, the Supreme Court concluded "that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Here, the purpose the family witnesses during [**75] second stage was to show how Coddington came from a bad background where his family members were drug addicts and criminals. Contrary to the State's response, such evidence might be perceived as facts about Coddington's background that would call for a penalty less than death. This instruction might have led the jury to believe the evidence of these witnesses' prior convictions was offered for impeachment purposes and was not offered to explain Coddington's background. To that extent, under the facts presented here, the instruction might have prevented the jury from considering relevant mitigating evidence. See Williams, 2001 OK CR 9, P104, 22 P.3d 702, 726.

[*P93] In Williams, we found any error in the language of the instruction did not have a substantial impact on the outcome of second stage proceedings. Id. Here, we cannot so find. This error, in conjunction with the error identified in Proposition Eight, requires Coddington's death sentence be vacated and the case remanded for a new sentencing proceeding.

[*P94] Because our remand for resentencing renders moot all other challenges to the second stage proceedings, the remaining propositions [**76] raising errors alleged to have occurred in the sentencing stage of trial need not be addressed. However, in Proposition Twenty, Coddington argues he received ineffective assistance of counsel in both stages of trial. Because we remand for resentencing, those complaints about counsel's second stage performance are moot. What remains is Coddington's complaints that his attorneys failed to make timely, specific objections, request admonishments or mistrial or take other appropriate action to preserve the issues raised in Propositions Three and Five.

State v. Frank Silva Roque, 2006 Ariz. Lexis 102 (Az 8/14/2006) Appellant's mental illness and low IQ were mitigating factors and should have resulted in the lesser sentence of life in prison with no chance of parole. "Because of the serious nature of Roque's crimes, however, we conclude that he should be imprisoned for the rest of his natural life and never be released." [DNSI, a numerousother blogs, have more.]

P166 Because Roque's crimes were committed before August 1, 2002, we independently review the aggravating circumstances and the mitigating evidence in this case and assess the propriety of imposing the death sentence. See A.R.S. § 13-703.04(A); 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(B). In our assessment, "we consider the quality and the strength, not simply the number, of aggravating and mitigating factors." State v. Greene, 192 Ariz. 431, 443, P 60, 967 P.2d 106, 118 (1998).

P167 Based on our independent review of the record, we conclude that the (F)(3) aggravating factor was proven beyond a reasonable doubt. We also conclude that the (F)(2) aggravating factor based on Roque's 1983 attempted robbery conviction [*102] was properly dismissed by the trial court and that the State failed to prove beyond a reasonable doubt the (F)(2) aggravating factor based on Roque's conviction for the attempted murder of Khalil.

P168 As mitigation, A.R.S. § 13-703(G)(1) instructs us to consider whether Roque's "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution." On that issue, the evidence shows that Roque's mother was a schizophrenic, leaving Roque predisposed to mental health problems. All four mental health experts who testified at trial regarding Roque's mental condition on the days after September 11, 2001, agreed that his mental condition impaired his capacity to conform to the law, but varied in their opinions of how significant that impairment was. n13 The defense experts concluded that Roque was legally insane at the time of the commission of his crimes. The court-appointed expert concluded that Roque suffered from either a psychotic disorder or an acute stress disorder that significantly impaired his capacity to conform to the law at the time of the commission [*103] of his crimes. Even the State's expert concluded that Roque suffered from an "adjustment disorder with depressed mood" that caused an emotional and behavioral reaction to the events of September 11, 2001. We give this mitigating evidence substantial weight. See State v. Trostle, 191 Ariz. 4, 21, 951 P.2d 869, 886 (1997) (in setting aside death sentence, giving serious consideration to defendant's mental illness because of its impact on defendant's capacity to conform to the law); State v. Doss, 116 Ariz. 156, 163, 568 P.2d 1054, 1061 (1977) (finding defendant's mental condition a "substantial factor in causing the death of the victim" and therefore setting aside sentence of death).

P169 From the non-statutory mitigating evidence presented in this case, we also [*104] consider Roque's low IQ as mitigation. Roque's IQ was measured at 80. While Roque's IQ is not, by itself, low enough for him to be considered to have mental retardation, his overall score is below average. Although mitigating evidence need not bear a nexus to the crime, Tennard, 542 U.S. at 289, the relationship between mitigating evidence and the murder may affect the weight given to the mitigating evidence, see Anderson II, 210 Ariz. at 357, P 136, 111 P.3d at 399. We consider the mitigating evidence of Roque's low IQ and its likely impact on Roque's ability to seek help or reason his way out of committing the crimes.

P170 The substantial mitigating evidence balanced against a single (F)(3) aggravating factor causes us to question whether a sentence of death is warranted in this case. See State v. Rockwell, 161 Ariz. 5, 16, 775 P.2d 1069, 1080 (1989). We recognize the serious nature of Roque's crime; the murder of Sodhi was part of a shooting spree that targeted victims based on their assumed ethnicity. As we have noted in the past, "[o]ur task in evaluating and weighing the proffered mitigation is difficult at best. There is [*105] no scale upon which to measure what is or is not 'sufficiently substantial.'" Trostle, 191 Ariz. at 23, 951 P.2d at 888. But taken as a whole, the mitigating evidence here raises a substantial question whether death is an appropriate sentence. See id. When "there is a doubt whether the death sentence should be imposed, we will resolve that doubt in favor of a life sentence." State v. Valencia, 132 Ariz. 248, 250, 645 P.2d 239, 241 (1982). We have such a doubt in this case, and therefore conclude that the death penalty should not be imposed. Because of the serious nature of Roque's crimes, however, we conclude that he should be imprisoned for the rest of his natural life and never be released. See A.R.S. §§ 13-703(A), -703.04(B).

People v. Fermin Rodriguez Ledesma, 2006 Cal. Lexis 9521 (CA 8/17/2006) This is the direct appeal for a resentencing trial that occurred in 1989, or roughly 17 years after the death sentence was imposed. Although the case is clearly a loss there are two notable holdings. The first is that the finding of intent to rob was formed only after death and hence can only be theft. Second, is, roughly, where a petitioner wins on a claim of ineffective assistance of counsel any information revealed from the prior attorney-client privilege can not be used at retrial. [John Wesley Hall'sLaw of Criminal Defense,Findlaw& theSCOCbloghave more.]

The United States Court of Appeals for the Ninth Circuit similarly has held, in an en banc decision, that in federal habeas corpus proceedings the petitioner's waiver of the attorney-client [*95] privilege arising from a claim of ineffective assistance of counsel extends only to litigation of the petition. ( Bittaker v. Woodford(9th Cir. 2003) 331 F.3d 715.) Bittakerupheld a district court's order precluding the disclosure of privileged attorney-client materials for any purpose other than litigating the federal habeas corpus petition. The court could "conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court." ( Id.at p. 722.) On the other hand, "[a] broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote." ( Ibid.) Furthermore, "[t]he fortuity that defendant's initial trial was constitutionally defective gives the prosecution no just claim to the lawyer's case file or testimony. To the contrary, allowing the prosecution at retrial to use information gathered by the first defense lawyer - including defendant's statements to his lawyer - would give the prosecution [*96] a wholly gratuitous advantage." ( Id.at p. 524.)

We find the reasoning of these cases persuasive. We have recognized that in some circumstances the attorney-client privilege may apply even when the communications at issue have been disclosed in another context and are no longer confidential. ( People v. Clark, supra,50 Cal.3d 583, 620-621 [although defense psychologist properly disclosed communications to third parties to avert potential danger to them, thereby eliminating the psychotherapist-patient privilege, attorney-client privilege nevertheless applied].) In Clark,we noted that the purpose of the psychotherapist-patient privilege is to promote the therapeutic relationship, a purpose that "can no longer be achieved once the therapist has revealed the confidential communications to third parties." ( Id.at p. 621.) In contrast, however, we found no provision in the Evidence Code that reflected "an intent that the attorney-client privilege terminate if a communication to an attorney is made public without a waiver of confidentiality by the client." ( Ibid.) The attorney-client privilege "exists to permit a client to freely and frankly [*97] reveal confidential information, including past criminal conduct, to the attorney or others whose purpose is to assist the attorney, and to thereby enable the attorney to adequately represent the client. [Citation.] In a criminal case the privilege also serves to preserve the defendant's privilege against self-incrimination . . . . To make adequate representation possible, therefore, these privileges assure criminal defendants that confidential statements to their attorney will not be admissible in any proceeding." ( Id. at p. 620, fn. omitted.)

The purpose of the exception to the attorney-client privilege established by Evidence Code section 958 is to avoid the injustice of permitting "a client either to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge or to refuse to pay his attorney's fee and invoke the privilege to defeat the attorney's claims." (7 Cal. Law Revision. Com. Rep., supra, p. 176.) That purpose was fully met when Dr. Glathe was permitted to testify for the prosecution at the habeas corpus hearing. To interpret section 958 as [*98] abolishing the privilege for all purposes in this context would raise serious questions as to whether section 958 conflicts with the defendant's Sixth Amendment right to counsel, a right that the privilege is intended to promote.

Furthermore, in a case such as this, in which the defendant successfully established that his previous attorney provided constitutionally ineffective assistance, the disclosure of confidential communications at the habeas corpus hearing can be attributed to the attorney's ineffective assistance. The admission of those communications at a retrial may be viewed as a further consequence of the violation of the defendant's right to effective assistance of counsel. ( Cf. People v. Karlin, supra,231 Cal. App. 2d 227 [the defendant's admissions made at preliminary hearing, when his attorney had a conflict of interest, could not be used at his subsequent trial].) In light of these serious constitutional concerns, we conclude the attorney-client privilege continues to apply for purposes of retrial after otherwise privileged matters have been disclosed in connection with habeas corpus proceedings, under Evidence Code section 958.

[Mr. Hall runs the Fourth Amendment blog, co-writes at NACDL's official news blog (along with Jeralyn Merritt) Talkleft, and the Law of Criminal Defense(similar to where we were a little over a year ago, a first-generation blog that is slowly being upgraded to the current era of blogger technology).]