Argument recap: Court doubts that failure to suppress confession is prejudicial in felony murder case

By James Bickford
on Oct 13, 2010 at 2:13 pm

At yesterday’s oral argument in Premo v. Moore, the Justices (with Justice Kagan recused) seemed ready to accept that respondent Randy Moore had not been prejudiced by his counsel’s failure to suppress his unconstitutionally obtained confession.  (My preview of the case is here.)

Arguing for the State of Oregon, Attorney General John Kroger began by asserting that the Ninth Circuit erred when it held that Arizona v. Fulminante provided the clearly established federal law governing a failure to suppress a confession obtained through unconstitutional means.  When asked by Justice Ginsburg, however, whether Fulminante was relevant “for the proposition that a defendant’s own confession carries heavy weight,” Kroger conceded that it was, at least for that purpose.

Justice Sotomayor then asked whether Kroger was arguing that, absent other incriminating evidence, “no defendant should plead guilty if [he has given] a suppressible confession.”  After responding that he was, Kroger went on to describe the charges to which Moore would have been subject had he not entered a plea of no contest.

Justice Ginsburg asked about the test suggested by Judge Marsha Berzon in her concurring opinion, which the Justice characterized as including the proposition that “if you get rid of the confession, then you have a better chance of getting a good deal in the plea bargain.”  Kroger replied that, even if the Court were to recognize that principle now, it would not have been clearly established federal law under AEDPA when the Ninth Circuit granted Moore’s petition; moreover, such a standard “would require an immense amount of speculation.”  In Justice Breyer’s view, however, such speculation is inevitable: “I mean, imagine a case where it’s clear there was a malpractice or an inadequate assistance, and it happened a long time ago and now you have to decide, well, was it prejudicial or not?”

Justice Sotomayor asked Kroger to assume that there had been no confession at all; he answered that a plea bargain would still have been a rational response.  Justice Breyer asked about the maximum sentence that Moore could have received if the case has gone to a grand jury; Kroger replied that Moore could have been charged with aggravated murder, a capital offense.

Justice Kennedy suggested that it was somewhat difficult to defer to the state court’s factual determinations when those findings included the erroneous holding that Moore’s confession was properly admissible.  Kroger replied that the state court was still owed deference for its finding that the motion to dismiss would ultimately have been unavailing.

Arguing for Moore, Steven Wax faced more aggressive questioning from the Court.  Justice Sotomayor began by suggesting that “[o]nce you put [Moore] in this shooting” then the only issue “is that he thinks that because [the killing] was accidental that that presents a defense to felony murder.  And that’s clearly an erroneous position on his part.”  Justice Alito asked whether Wax was suggesting that all potentially meritorious motions must be litigated.  Wax replied that he certainly was not – the problem in this case was that Moore’s attorney did not understand that the confession was suppressible, not that he failed to suppress it in the abstract.

Justice Sotomayor and Justice Breyer next pressed Wax to explain what Moore’s defense to felony murder would have been had his confession been suppressed.  Justice Breyer suggested that there was “a lot of evidence [that] he shot” the victim, and a lot of evidence that he was involved in the kidnapping.  Justice Breyer emphasized that even if a killing incident to a kidnapping was accidental, it would still be felony murder.  Wax answered that Moore could have claimed that although he was present at the kidnapping he was not complicit in the crime; moreover, he could have attacked the credibility of his brother, a police informant who put Moore at the scene of the crime.  Justice Alito also pressed Wax to lay out a plausible defense to the underlying charge of kidnapping.

Wax emphasized that the controlling precedent for the effectiveness of counsel in the run-up to a plea deal was Hill v. Lockhart, which rested on the likelihood that a defendant would have proceeded to trial had he been given adequate counsel.  Wax averred that Moore would have not have accepted a plea deal if he had known that his confession was suppressible, but Justice Sotomayor suggested that Moore would have been irrational to do so.  (Under his plea bargain, Moore received the minimum sentence for felony murder.)

Justices Scalia and Ginsburg noted that there was no record to support Moore’s claim that he would have proceeded to trial.  And Justice Breyer suggested that a “reasonable person” standard was implicit within the Court’s precedents: perhaps Moore would actually have proceeded to trial in this case, but if a rational person would have accepted the plea it was hard to say that Moore had been denied his Sixth Amendment rights.  Even if a jury believed that Moore had accidentally killed the victim as part of a kidnapping, it could not have given him a lighter sentence than the one that he actually received as part of his plea.

Justice Scalia asked about the effect of Moore’s signature on the plea agreement, which stated that he understood that any evidence against him may have been obtained unconstitutionally.  Wax answered that the plea agreement was irrelevant, because it was entered under the mistaken understanding that Moore’s confession was in fact properly obtained.