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Ninth Circuit Warns Prosecutors Against Interfering With Defendants’ Legal Representation; Reverses First-Degree Murder Convictions

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit determined that James Michael Wells did not receive a fair trial, reversed his first-degree murder convictions, and remanded for a new trial after the case was reassigned to a different judge to preserve the appearance of justice.

On the morning of April 12, 2012, Richard Belisle and James Hopkins were murdered at the U.S. Coast Guard antenna maintenance facility on Kodiak Island, Alaska. Their co-worker at the facility, Wells, was arrested and charged with first-degree murder. Alaska Federal Public Defender (“FPD”), F. Rich Cutner, was appointed to represent Wells. Cutner successfully moved to have a second court-appointed attorney, Peter Offenbecher, assigned pursuant to 18 U.S.C. § 3005 because it was a capital case. The prosecution team was comprised of at least three attorneys.

On August 5, 2013, the prosecution announced that it would no longer seek the death penalty. Then on August 21, 2013, it filed a motion to have the second court-appointed attorney, Offenbecher, removed from the case because it was no longer a capital case. The prosecution acknowledged that the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, does not prohibit having two court-appointed attorneys in a non-capital case.

Cutner opposed the motion, arguing that “extenuating circumstances” existed. Offenbecher had already established an attorney-client relationship with Wells and spent significant time reviewing discovery. Additionally, his removal from the case would leave Cutner as the sole attorney on it while he had to simultaneously manage the FPD office during an unprecedented fiscal crisis, resulting in no FPD staff attorneys to assist him on the case. Cutner argued that under those circumstances, the prosecution’s three attorneys on the case constituted an unfair imbalance in resources, jeopardizing Wells’ Sixth Amendment right to counsel.

On September 11, 2013, the magistrate judge granted the prosecution’s motion and removed Offenbecher from the case. Cutner’s objections were never addressed, and the district judge took no action on the issue.

At trial, the district court allowed the prosecution to introduce criminal profile testimony of its expert witness during its case-in-chief. Dr. J. Reid Meloy’s testimony was purportedly provided to explain “targeted, intended workplace multiple-homicide violence” in general, and not as a criminal profile of Wells in particular. Wells objected to the expert testimony, arguing that it amounted to the use of criminal profile testimony as substantive evidence of guilt, which is impermissible. Nevertheless, the prosecution used Meloy’s criminal profile testimony to establish a “fit” between it and Wells’ character traits, as testified to by lay witnesses.

The jury convicted him on six counts, including two counts of first-degree murder. Wells appealed, claiming several bases for a new trial, including the removal of Offenbecher from the case and the admission of Meloy’s criminal profile testimony.

The Ninth Circuit began its opinion with a remarkable reprimand of the prosecution, quoting U.S. Supreme Court Justice Brandeis’ admonition: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” The Court noted that federal prosecutors “are bound to appear in the name of Justice” but that their actions in the case “so tipped the scales of justice as to render Wells’ trial fundamentally unfair.”

As to the issue of Offenbecher’s removal, the Court ruled that it did not constitute reversible error because the standard of review is abuse of discretion, but the prosecution’s actions in having him removed deeply troubled the Court, writing we cannot “accept without comment the Government’s interference in the status of Wells’ representation.” It announced that “we offer a cautionary note.”

The Ninth Circuit warned that the prosecution improperly inserted itself in decisions regarding Wells’ defense team, describing its behavior as “ethically compromised.” A defendant’s legal representation is “a matter exclusively within the province of the judiciary.” In fact, the prosecution is precluded from participating in the determination whether a defendant is eligible for court-appointed counsel under the CJA. The Court opined that the prosecution’s behavior was particularly troubling in this case because of the extreme imbalance in resources, i.e., a single “uniquely beleaguered FPD” versus three federal prosecutors and “the unlimited resources of the Government.”

The Court provided this damning assessment: “The Government’s decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.” The Ninth Circuit concluded its discussion by placing federal prosecutors within its jurisdiction on notice that “in the future, the Government should tend to its own knitting.”

Turning to the issue of the criminal profile testimony, the Court of Appeals ruled that it “was clearly inadmissible” under Rule 404(a)(1), which prohibits the admission of character evidence “to prove that on a particular occasion the person acted in accordance with the character or trait.” The appellate court determined that the prosecution used Meloy’s expert testimony “to substantively connect the strands of circumstantial evidence in such a way as to fit Wells into the criminal profile,” i.e., it was used as inadmissible character evidence. The Court explained that this type of character evidence is “inherently prejudicial” and thus “has no place as substantive evidence of guilt….”

It also runs afoul of the balancing test under Rule 403 (probative value versus prejudicial effect). As the Court pointed out, the probative value of Meloy’s testimony lies solely “in its ability to answer the impermissible question of whether, based on his character profile, Wells acted in accordance therewith” on the day of the murders.

The appellate court then had to decide whether the admission of the improper expert testimony amounted to reversible or harmless error. The standard for reversal is whether the error affected a substantial right, meaning “we require a finding of prejudice.” Upon appellate review, there is a presumption of prejudice. The prosecution failed to rebut the presumption “by a showing that it is more probable than not that the jury would have reached the same verdict even if the evidence had not been admitted,” the Court concluded. Therefore, the Ninth Circuit held that “the admission of Dr. Meloy’s testimony constituted reversible error.”

The Court remanded for a new trial after the case was reassigned. A case is reassigned on remand only under “unusual circumstances or when required to preserve the interests of justice.” The original district court judge made comments at sentencing in response to Wells’ claims of innocence that led the Court to conclude the judge “would have substantial difficulty in setting aside his view of this case.” Accordingly, in order to “preserve the appearance of justice and order,” the Court directed that the case be reassigned on remand.

See: United States v. Wells, 2017 U.S. App. LEXIS 25676 (9th Cir. 2017). 

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