Bradley v. Henry ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLE BRADLEY,  No. 04-15919
Petitioner-Appellant, D.C. No.
v.
 CV-03-03034-PJH
GLORIA HENRY, Warden, ORDER AND
Respondent-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
April 11, 2005—San Francisco, California
Filed June 22, 2005
Amended October 17, 2005
Before: Warren J. Ferguson, John T. Noonan, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Ferguson;
Dissent by Judge Rymer
14135
14138 BRADLEY v. HENRY
COUNSEL
Dennis P. Riordan, San Francisco, California, for the
petitioner-appellant.
Morris Beatus, Deputy Attorney General, San Francisco, Cali-
fornia, for the respondent-appellee.
ORDER
The opinion filed on June 22, 2005 is amended as follows:
Slip op. p. 7454, ¶ 1, l.4. Insert “potentially” before “capi-
tal”.
Slip op. p. 7454, ¶ 2, l.6. At “executed”, substitute comma
for period and add “if the prosecutor chose to seek the death
penalty.”
Slip op. p.7463, ¶ 3, l.4. Substitute “Potentially on” for
“On”.
Slip op. p.7463, ¶ 3, l.4. Add after “palpable”:
Until the robbery-murder special circumstance
charge was dismissed, a dismissal that occurred after
completion of the prosecutor’s case, the prosecutor
could have asked for the death penalty. Leo v. Supe-
rior Court, 225 Cal. Rptr. 15 (Cal. Ct. App. 1986).
Slip op. p.7463, at the end of ¶ 3. Add the following new
¶:
In the petition for rehearing, the state cites Morris
v. Slappy, 461 U.S. 1, 13 (1983), denying that a
defendant has a right to a “meaningful attorney-
BRADLEY v. HENRY 14139
client relationship,” adding, “[n]o court could possi-
bly guarantee that a defendant will develop that kind
of rapport with his attorney — privately retained or
provided by the public.” There is no doubt that this
line of thought establishes the current test for inef-
fective assistance of counsel. Bradley, however, does
not raise an ineffective assistance of counsel claim
and her assertion of constitutional error in excluding
her from a critical phase of the trial should not be
collapsed into such a claim. The error, according to
established Supreme Court precedent, was to
exclude her from a critical stage of her trial.
As a result of that exclusion, she did not partici-
pate in the termination of her contract with her exist-
ing counsel and in the selection of her new counsel.
Judicial inability to guarantee a good lawyer-client
relationship cannot be converted into a judicial abil-
ity to break a lawyer-client relationship without
hearing the client or into a judicial ability to select
another lawyer without hearing the client. Not only
was harm done to Bradley in depriving her of her
existing counsel without notice to her. Not only were
her lawyers replaced but the man replacing them was
explicitly approved by the prosecutor, a method of
selection that deprived Bradley of her basic freedom
to choose her own counsel. Not only was harm done
to Bradley by denying her any say in the choice of
new counsel. These harms were increased by the fact
that the lawyer chosen by the court explored an
insanity defense that Bradley did not want; contacted
his client chiefly through his investigator and not in
person; and, so alienated his client that she filed a
complaint against him with the California State Bar
and threatened to sue his firm. Two months before
trial the lawyer-client relationship of Andrian to
Bradley was a shambles. The trial court could not
have guaranteed that the shambles would not have
14140 BRADLEY v. HENRY
occurred, but when it did occur as a result of a trial
court’s ex parte removal of counsel and ex parte sub-
stitution of new counsel, Bradley was denied due
process of law as determined by federal law estab-
lished by the United States Supreme Court.
Respondent’s petition for rehearing and for rehearing en
banc remains pending.
OPINION
NOONAN, Circuit Judge:
Nicole Bradley appeals the judgment of the district court
denying her habeas corpus petition. Holding that she was
denied due process of law at a critical stage in her criminal
trial with harm to her ability to defend herself in a potentially
capital case, we reverse the judgment of the district court.
FACTS AND PROCEEDINGS
On January 17, 1996, Bradley, 18 years old at the time,
attempted a carjacking in the course of which the driver of the
car was shot. On January 22, 1996, she was taken into custody
and charged with attempted robbery, carjacking, possession of
a short-barreled shotgun, and murder in the first degree, with
special circumstances. If convicted, she could be executed, if
the prosecutor chose to seek the death penalty.
At the time she was represented by Patrick Hutchinson,
soon joined by Jack Montgomery. On March 15, 1996, Judge
Tansil, the trial judge, disqualified Montgomery for conflict
of interest. On June 10, 1996, Marteen Miller joined Hutchin-
son as counsel. On October 18, 1996, Hutchinson and Miller
were replaced by Melvin Sacks. On December 13, 1996,
Jamie Thistlewaite joined Sacks, and the court set trial for
BRADLEY v. HENRY 14141
April 14, 1997. On February 28, 1997, the trial date was con-
tinued to July 18, 1997 for calendar control. On July 3, 1997,
the trial date was changed again to March 2, 1998. On
November 12, 1997, Bradley moved to substitute Kerry
Steigerwalt in place of Sacks and Thistlewaite. At the hearing
on the motion, Judge Tansil stated that “this will be the last
change in counsel.” The judge also changed the trial date
from March 2 to March 30, 1998. Cynthia M. Dunlevy joined
Steigerwalt as Bradley’s counsel.
On March 4, 1998, Judge Tansil held a hearing in camera
attended by the district attorney of Sonoma County; the dep-
uty district attorney prosecuting the case; an investigator from
the district attorney’s office; Dunlevy; and two lawyers new
to the case, Chris Andrian and his partner Steve Gallenson.
Bradley was not present. Dunlevy indicated that private inves-
tigators, inferentially hired by the father, had been watching
the prosecutor. The district attorney said that the prosecutor’s
safety might be at risk, that the father would use any strategy
to get a continuance, and that “someone” was planning a vio-
lent act to get a continuance; the clear implication was that it
was the father. A theme of the conference was the interfer-
ence of the father in the conduct of his daughter’s case, the
father’s control of his daughter, and the father’s danger to the
prosecutor.
Also discussed was a proposed withdrawal of counsel.
Dunlevy told Judge Tansil that she and Steigerwalt were mov-
ing to be relieved as counsel due to serious conflicts, includ-
ing nonpayment for their services by the father. Dunlevy
added: “I think, based on everything that has gone on, what’s
in the best interest of my client is that I’m doing what I’m
doing . . . . She’s definitely drowning . . . .” The presence of
the two lawyers new to the case, Andrian and Gallenson, was
explained by the fact that the court had approached Andrian
about being appointed to represent Bradley. Inferentially it is
evident that Dunlevy had already told the court of her desire
to withdraw and had asked for help in getting a replacement.
14142 BRADLEY v. HENRY
Dunlevy informed the court that Bradley opposed her with-
drawal and had retained Bradley’s former lawyer, Hutchin-
son, to oppose Dunlevy’s motion.
At the conclusion of the conference in camera, the proceed-
ings were placed under seal and became inaccessible to Brad-
ley at the time of trial. Judge Tansil in open court accepted
Dunlevy’s motion to relieve counsel, stating: “I am concerned
that this case would never get to trial with retained counsel.
The only way to get the case to trial is through appointed
counsel . . . So the Court must take this action on behalf of
the defendant Nicole Bradley . . . .” Bradley was present but
did not speak. The court then appointed Andrian to represent
Bradley, with Dunlevy continuing on a transitional basis.
Dunlevy again told the court that Bradley would like Hutchin-
son, who was present in court, to speak on her behalf. The
prosecutor objected, and the court refused to hear Hutchinson.
The trial date was postponed to October 26, 1998. On Octo-
ber 14, 1998, Bradley moved for a continuance and the fol-
lowing day she moved to replace Andrian. A hearing was held
before Judge Owen, who was to be the trial judge. Andrian
stated that there was a conflict between him and Bradley and
that she had filed a complaint against him with the State Bar
and had threatened to sue him personally. Andrian explained
that his insurance carrier required him to stop communicating
with a client who threatened to sue him. Bradley stated the
ways in which she found Andrian’s representation inadequate,
and he responded. Judge Owen found that Bradley had not
shown inadequate or ineffective representation. He suggested
resolution of the insurance issue. By December 16, 1998, that
problem was resolved by an agreement of the county to
indemnify Andrian. Trial was reset for February 22, 1999.
On January 7, 1999, Bradley moved to substitute retained
counsel, Jonathan Jordan, for Andrian. Bradley stated that her
relationship with Andrian prevented any adequate defense.
Jordan said he would be ready for trial. On January 19, 1999,
BRADLEY v. HENRY 14143
Judge Owen heard a hearing on this motion. Judge Owen
expressed concern about the payment of Jordan. Jordan
responded that his financial relationship with Mr. Bradley was
“not a concern at this point.” Judge Owen stated that there
was significant danger of delay in substituting new counsel in
a process that was almost “lawyer-churning,” a process that
had delayed trial for almost three years. He denied the motion
to substitute Jordan and also Jordan’s suggestion that he
become associate counsel with Andrian.
The case went to trial before a jury in March, 1999. The
prosecution’s case was that Bradley had killed in the course
of a felony. Her two juvenile accomplices testified against
her, as did a police officer, to whom she had made admis-
sions. No one testified that she had deliberately shot the
driver. The shooting appeared to be unintentional. But it was
the cause of death during the commission of the carjacking,
a felony the witnesses blamed on Bradley. Bradley did not
testify in her own defense. She was found guilty of murder in
the first degree (Cal. Pen. Code § 187(a)), attempted carjack-
ing (Cal. Pen. Code § 215(a)), and possession of a short-
barreled shotgun (Cal. Pen. Code § 12020(a)). She received a
sentence of thirty-five years to life in prison.
Bradley appealed, raising three issues: (1) disqualification
of one of her initial counsel; (2) the conference in camera dis-
cussing Steigerwalt and Dunlevy’s request to withdraw, an
event characterized as a denial of the right to counsel and as
denial of Bradley’s right to be present at a critical stage; and
(3) denial of appointment to Jordan.
The court of appeal for the first appellate district held that
Montgomery had properly been disqualified because he had
been given confidential information by one of Bradley’s co-
defendants. Bradley’s exclusion from the conference in cham-
bers was, if error, not structural, the court said and it went on
to consider if the error was prejudicial, concluding that it was
not because Dunlevy did not have funds to conduct a defense.
14144 BRADLEY v. HENRY
“Even if Bradley had been present at the hearing, she could
not refute this point because she was not herself paying Dun-
levy and therefore had no personal knowledge on the subject.”
The refusal to let Hutchinson address the court was treated as
error, but error that was harmless, again because the lack of
payment of counsel could not have been addressed by any-
thing Hutchinson could say. Finally, the court held that it was
reasonable to deny the appointment of Jordan, given the delay
of trial by changes in the lawyers for the defendant; Jordan
had not reviewed the twelve boxes of material that prepara-
tion for trial required; and there was no constitutional right to
have Jordan added as co-counsel. On April 17, 2002, Brad-
ley’s conviction was affirmed. On July 10, 2002, the Califor-
nia Supreme Court summarily denied review.
On June 30, 2003, Bradley filed the present petition for
habeas corpus. She contended that she had been denied her
constitutional rights to due process, a fair trial, and counsel of
her choice in violation of the Fifth, Sixth, and Fourteenth
Amendments. The violations specified were the conference in
camera on the withdrawal of counsel and the refusal to
appoint Jordan. The district court held that the conference in
camera was a critical stage but that Bradley’s presence would
not have contributed to the fairness of the proceeding and so
her exclusion did not violate the rule laid down in Kentucky
v. Stincer, 482 U.S. 730, 745 (1987). The district court added
that it was neither an unreasonable determination of the facts
nor contrary to clearly established federal law nor an unrea-
sonable application of such law for the California appeals
court to conclude that Bradley could not have refuted Dun-
levy’s report of not being properly paid and Dunlevy’s
account of the interference, past and prospective, of Bradley’s
father. The denial of appointment of Jordan was similarly held
not to violate any established constitutional right.
Bradley appeals.
BRADLEY v. HENRY 14145
ANALYSIS
The statute governing our review. Habeas corpus is a fun-
damental right secured by the Constitution of the United
States. U.S. Const. art. I., § 9, cl. 2. Its exercise is presently
governed by the Antiterrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2254(d)(1). As governed by this
statute, the great writ may be issued only if the state court’s
ruling “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States” or was “based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” Id.
It is not difficult to determine when a decision is contrary
to federal law established by the Supreme Court: it is a deci-
sion reaching a different result from the result reached by the
Supreme Court on “facts that are materially indistinguishable
. . . .” See Williams v. Taylor, 529 U.S. 362, 406 (2000). It is
more difficult to determine whether a state court’s ruling “in-
volved an unreasonable application” of controlling precedent
from the Supreme Court. Nearly every case is different. The
statutory term “unreasonable” invites debate as to what is or
is not reasonable. “Applying a general standard to a specific
case can demand a substantial element of judgment.” See Yar-
borough v. Alvarado, 541 U.S. 652, 664 (2004). We are
admonished that the test is not our view of what would be
erroneous but what is “objectively unreasonable.” See Lock-
yer v. Andrade, 538 U.S. 63, 76 (2003).
No doubt there is an insidious implication in this admonish-
ment that there is an entirely objective perspective on each
case, whereas as we know: “We may try to see things as
objectively as we please. None the less, we can never see
them with any eyes except our own.” Benjamin N. Cardozo,
The Nature of the Judicial Process 13 (1921). We heed the
Supreme Court’s advice by attempting with our own subjec-
14146 BRADLEY v. HENRY
tive abilities to state what we think some hypothetical reason-
able jurist would find to be the case.
[1] The conference in camera. We are given a relatively
small set of precedents to consider, namely, “the holdings, as
opposed to the dicta,” of the Supreme Court. Williams, 529
U.S. at 412. We turn to the relevant cases. In Stincer, the
Supreme Court held that the exclusion of the defendant from
an in camera hearing to determine the competency of two
child witnesses against him was not a denial of the defen-
dant’s rights under the Confrontation Clause or the Due Pro-
cess Clause. See Stincer, 482 U.S. at 744-45. In the course of
the opinion, Justice Cardozo’s statement in Snyder v. Massa-
chusetts, 291 U.S. 97, 108 (1934) was quoted that due process
requires that the defendant be allowed to be present “ ‘to the
extent that a fair and just hearing would be thwarted by his
absence.’ ” See Stincer, 482 U.S. at 745.
[2] In Rushen v. Spain, 464 U.S. 114 (1983) the trial judge
interviewed a juror about her knowledge of a murder con-
nected with the Black Panthers, six of whom were on trial;
their counsel were not present. The Supreme Court stated:
“Our cases recognize that the right to personal presence at all
critical stages of the trial and the right to counsel are funda-
mental rights of each criminal defendant.” Id. at 117. The
Court went on to hold that “the alleged constitutional error
[was] harmless beyond a reasonable doubt.” Id. at 121.
In United States v. Gagnon, 470 U.S. 522 (1985), the trial
judge conducted an interview with a juror without the defen-
dants being present but with the relevant defendant’s lawyer
on hand. The Supreme Court quoted Synder as a statement of
the decisive principle and went on to find that the defendants
could have contributed nothing to the conference. Id. at 527.
Further, the Court found that the defendants “neither then nor
later in the course of the trial” asserted their right to be pres-
ent and “did not even make any post-trial motions, although
BRADLEY v. HENRY 14147
post-trial hearings may often resolve this sort of claim.” Id. at
528.
[3] Snyder involved the jury’s viewing the crime scene in
the absence of the defendant, see Snyder, 291 U.S. at 103-05;
Stincer involved the competency of two children as witnesses.
See Stincer, 482 U.S. at 732-34. Each case was focused
chiefly on a defendant’s rights under the Confrontation
Clause. In Snyder, the statement as to when a defendant has
the right to be present appears to be not essential to the hold-
ing; the same is true of Stincer’s quotation of Snyder. Spain
and Gagnon each deal with communications between a judge
and a juror. In neither case was the absence of the defendant
dispositive. Are the statements on a defendant’s right to be
present to be disregarded as dicta?
At first the answer appears evident. The authority of the
Supreme Court to determine what law must be used is an
authority identical with the Supreme Court’s supremacy in the
system. As the Supreme Court says that only its holdings, not
its dicta, must be followed in determining what is “established
federal law,” only its holdings may be applied.
Still, a doubt persists. Dicta in normal judicial parlance are
statements of a court not necessary to its resolution of the case
before it; holdings consist in the rules disposing of the case.
But the Supreme Court often enough enunciates principles of
law that are not actually applied in the case before it. The
principles would be categorized as dicta if the court were not
the Supreme Court. But these principles are treated by courts
and commentators as established federal law.
In the most famous and most fundamental of such readings,
Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1
Cranch) 137, 176 (1803), set out the principle empowering
the Supreme Court to invalidate an unconstitutional law: “It
is a proposition too plain to be contested, that the constitution
controls any legislative act repugnant to it . . . . It is, emphati-
14148 BRADLEY v. HENRY
cally the province and duty of the judicial department to say
what the law is.” The Supreme Court went on to dismiss the
case for want of jurisdiction. See id. at 175-76. All that was
necessary for the decision was the holding that the Supreme
Court had power to review legislation affecting its jurisdic-
tion. Strictly speaking, Chief Justice Marshall’s pronounce-
ment on the comprehensive power of the judicial department
to review legislation was a dictum. No one, however, doubts
that it was a holding.
To illustrate by the case at hand, the district court treated
Stincer, 482 U.S. at 745, as establishing the rule governing the
defendant’s presence at a critical stage in the process. The
Supreme Court itself in Stincer treated Justice Cardozo’s
opinion in Snyder, 291 U.S. at 107-08, as having established
the rule repeated in Stincer, viz, that due process requires the
defendant to be present at every stage of the trial “to the
extent that a fair and just hearing would be thwarted by his
absence.” See Stincer, 482 U.S. at 745 (quoting Snyder, 291
U.S. at 107-08). Similarly in Spain, the Court declared “Our
cases recognize . . .” going on to assert the fundamental right
to be present at each critical stage. See Spain, 464 U.S. at 117.
The teaching was reiterated by the Court in Gagnon, 470 U.S.
at 527.
It would be rash for us to disregard the pronouncement of
Justice Cardozo and its acknowledgment in Stincer and Spain
and Gagnon because a technical reading of these cases could
classify the relevant principle as dicta. The Constitution lives
by such comprehensive commentary from the Supreme Court.
We cannot deprive the document of vitality by squeezing
great principles into a dustbin labeled dicta. We apply as
established federal law the broad principle set out in Snyder,
Stincer, Spain and Gagnon. This approach appears to be con-
firmed by the gloss written by the Supreme Court on “hold-
ings, as opposed to dicta.” Quoting this language from
Williams, the Court said: “In other words, ‘clearly established
Federal law’ under § 2254(d)(1) is the governing legal princi-
BRADLEY v. HENRY 14149
ple or principles set forth by the Supreme Court at the time
the state court renders its decision.” See Lockyer, 538 U.S. at
71-72 (quoting Williams, 529 U.S. at 405, 413). We, there-
fore, apply established governing principles.
[4] In the instant case, the conference in camera was a criti-
cal stage in the prosecution of Bradley. Her exclusion from it,
apparently deliberate and without notice, deprived her of the
opportunity to speak to the choice of counsel. She had no
absolute right to choose her counsel. United States v. Wheat,
486 U.S. 153, 159 (1988). Absence of an absolute right does
not reduce a defendant in a capital case to a zero in the deli-
cate decision as to who will represent her as she stands trial
for her life.
To obtain reversal of the judgment, does Bradley have to
show that she suffered harm beyond the fact of her exclusion?
The Supreme Court has stated: “Obtaining reversal for viola-
tion of such a right does not require a showing of prejudice
to the defense, since the right reflects constitutional protection
of the defendant’s free choice independent of concern for the
objective fairness of the proceeding.” See Flanagan v. United
States, 465 U.S. 259, 268 (1984). This pronouncement was
made in the course of a decision focused on the appealability
of an order disqualifying counsel. Technically, it was dicta. In
terms of Supreme Court practice, it appears to be a statement
of constitutional principle and therefore to constitute federal
law established by the Supreme Court. However, the en banc
majority in Campbell v. Rice, 2005 U.S. App. LEXIS, at *10-
11 (9th Cir. 2005) did not apply this principle but required a
showing of prejudice by the defendant to obtain reversal of
his conviction.
[5] We need not resolve the dilemma of whether we are
bound by this recent circuit precedent or by the Supreme
Court’s pronouncement of principle, because in our case the
harm to Bradley is palpable. Until the robbery-murder special
circumstance charge was dismissed, a dismissal that occurred
14150 BRADLEY v. HENRY
after completion of the prosecutor’s case, the prosecutor could
have asked for the death penalty. Leo v. Superior Court, 225
Cal. Rptr. 15 (Cal. Ct. App. 1986). Potentially on trial for her
life, with witnesses against her who had participated in the
crime, she needed a lawyer whom she could trust, with whom
she could communicate freely, who would be her friend, her
champion, her sagacious counselor. As her subsequent
unhappy relationship with Andrian demonstrates, he was none
of these but an incubus she sought to rid herself of. The con-
stitutional injury inflicted in her exclusion from the in camera
conference had these clear harmful consequences.
In the petition for rehearing, the state cites Morris v.
Slappy, 461 U.S. 1, 13 (1983), denying that a defendant has
a right to a “meaningful attorney-client relationship,” adding,
“[n]o court could possibly guarantee that a defendant will
develop that kind of rapport with his attorney — privately
retained or provided by the public.” There is no doubt that this
line of thought establishes the current test for ineffective
assistance of counsel. Bradley, however, does not raise an
ineffective assistance of counsel claim and her assertion of
constitutional error in excluding her from a critical phase of
the trial should not be collapsed into such a claim. The error,
according to established Supreme Court precedent, was to
exclude her from a critical stage of her trial.
As a result of that exclusion, she did not participate in the
termination of her contract with her existing counsel and in
the selection of her new counsel. Judicial inability to guaran-
tee a good lawyer-client relationship cannot be converted into
a judicial ability to break a lawyer-client relationship without
hearing the client or into a judicial ability to select another
lawyer without hearing the client. Not only was harm done to
Bradley in depriving her of her existing counsel without
notice to her. Not only were her lawyers replaced but the man
replacing them was explicitly approved by the prosecutor, a
method of selection that deprived Bradley of her basic free-
dom to choose her own counsel. Not only was harm done to
BRADLEY v. HENRY 14151
Bradley by denying her any say in the choice of new counsel.
These harms were increased by the fact that the lawyer chosen
by the court explored an insanity defense that Bradley did not
want; contacted his client chiefly through his investigator and
not in person; and, so alienated his client that she filed a com-
plaint against him with the California State Bar and threat-
ened to sue his firm. Two months before trial the lawyer-
client relationship of Andrian to Bradley was a shambles. The
trial court could not have guaranteed that the shambles would
not have occurred, but when it did occur as a result of a trial
court’s ex parte removal of counsel and ex parte substitution
of new counsel, Bradley was denied due process of law as
determined by federal law established by the United States
Supreme Court.
The state seems to imply that the security of the court
required Bradley’s absence from the conference. But informa-
tion as to her father’s conduct could have been furnished the
court without any exploration of replacement of counsel.
Nothing in the record appears to justify the conflation of
reports on the menace of the father and the appointment of
Andrian without Bradley’s participation.
[6] We know that she objected to the withdrawal of Dun-
levy and Steigerwalt. We know that, because of the prosecu-
tor’s objection, she was denied the opportunity to present her
objection in open court through retained counsel, Patrick
Hutchinson. We know that in this ex parte fashion the con-
tract between client and lawyer was dissolved without the cli-
ent having a word to say. We know that at the in camera
conference, with the district attorney and the prosecutor
assenting, a lawyer was selected for her by the court as to
whom she was not asked to consent. A fair and just hearing
was thwarted by Bradley’s absence from the conference in
Judge Tansil’s chambers.
True, Judge Tansil was dealing with a difficult situation:
the two changes in counsel apparently caused by the defen-
14152 BRADLEY v. HENRY
dant’s father. But, so far as the record shows, these changes
were not the only cause for the slow pace. Impatience, how-
ever understandable, cannot short circuit due process, and due
process cannot be abandoned because it is difficult to assure.
[7] What went on later in open court was pro forma; Judge
Tansil had already decided on his course of action. The Cali-
fornia court of appeal held Bradley’s absence from the confer-
ence harmless because she by herself would have been
helpless to assure the payment of counsel. Surely, however,
she would have been able to say whether Andrian was a law-
yer that she wanted to have. Surely, she could have said
whether or not she wanted a lawyer selected for her by the
court. Surely, the ground for future conflict was laid by this
choice of counsel for her with the approval of her adversary.
On these points, there are no findings of fact by the California
court of appeal. There was only an unreasonable application
of established federal law.
For the reasons stated, the judgment of the district court is
REVERSED. The case is REMANDED to the district court
to issue the writ.
FERGUSON, Circuit Judge, concurring:
I agree with the majority opinion but write separately to
underscore that Bradley was not only deprived of her right to
due process by being excluded from the in-camera hearing.
See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). She was
also deprived of her Sixth Amendment right to select counsel
of her choice as an effect of that exclusion.
At the in-camera hearing, the trial judge effectively sealed
Bradley’s ability to maintain and secure counsel of her choice
in a capital case. First, the judge inexplicably refused to let
Bradley’s former attorney, Patrick Hutchinson, speak on
BRADLEY v. HENRY 14153
Bradley’s behalf even though he was representing her interest
in not having Cynthia Dunlevy withdraw as her present coun-
sel. Second, the judge substituted retained counsel with
appointed counsel without ever asking for or learning Brad-
ley’s opinion. While the dissent correctly asserts that a defen-
dant has no right to insist on counsel she cannot afford, see
Wheat v. United States, 486 U.S. 153, 159 (1988), the judge
never asked Bradley about her financial condition. Rather, he
silenced her entirely, the effect of which was to divest of any
value or weight Bradley’s Sixth Amendment right to counsel
of choice. This is an error that is per se prejudicial, structural,
and requires automatic reversal. Flanagan v. United States,
465 U.S. 259, 268 (1984) (“Obtaining reversal for violation
of such a right does not require a showing of prejudice to the
defense, since the right reflects constitutional protection of the
defendant’s free choice independent of concern for the objec-
tive fairness of the proceeding.”). Because our system of jus-
tice cannot condone a judge’s unconstitutional treatment of
any criminal defendant, I concur in the majority opinion.
RYMER, Circuit Judge, dissenting:
For some reason, the majority discourses on objectivity and
subjectivity, doubt and certainty, dicta and principles and
holdings, when we have a straightforward question to answer:
was the California Court of Appeal’s decision contrary to, or
an unreasonable application of, clearly established federal law
as declared by the United States Supreme Court, 28 U.S.C.
§ 2254(d); Lockyer v. Andrade, 538 U.S. 63, 73-76 (2003), in
holding that Nicole Bradley was not prejudiced by her
absence from a critical proceeding where her attorneys were
allowed to withdraw on the ground that they were not getting
paid by Bradley’s father (as they were supposed to be) and
new counsel was appointed in their stead; or that the trial
court’s refusal to substitute another retained counsel for
appointed counsel on the eve of trial, after more than three
14154 BRADLEY v. HENRY
years of lawyer-churning, did not offend the Sixth Amend-
ment. In my view, the court of appeal’s decision reasonably
applied Supreme Court precedent because Kentucky v.
Stincer, 482 U.S. 730, 746 (1987), held that a defendant is not
deprived of due process when she is excluded from a hearing
that bears no “substantial relationship to [her] opportunity bet-
ter to defend [her]self at trial.” And Wheat v. United States,
486 U.S. 153, 159 (1988), made clear that a defendant is not
necessarily denied her right to counsel when she is repre-
sented by effective counsel, whether or not that counsel is her
preferred counsel. As neither statutory ground for issuance of
the writ appears, I would affirm.
I
One need not condone Bradley’s exclusion from the March
4, 1998 in-chambers hearing where Kerry Steigerwalt and
Cynthia Dunlevy’s motion to withdraw was granted and Chris
Andrian was appointed in their stead, to conclude that the
California Court of Appeal did not unreasonably apply
Supreme Court precedent. Bradley argued there, as she does
here, that excluding her was error, that the error was struc-
tural, and that reversal of her convictions is required. How-
ever, as the Supreme Court has made clear, “th[e] privilege of
presence is not guaranteed ‘when presence would be useless,
or the benefit but a shadow.’ ” Stincer, 482 U.S. at 745 (quot-
ing Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934)); see
also Rushen v. Spain, 464 U.S. 114, 117 n.2 (1983) (per
curiam) (holding that defendant’s exclusion from ex parte, in-
chambers communication between trial judge and juror was
trial error subject to harmless error review); Campbell v. Rice,
___ F.3d ___, 2005 WL 1189650, at *4-*5 (9th Cir. May 20,
2005) (en banc) (so construing Supreme Court precedent).
The main subject of the hearing was Bradley’s father’s
ability to pay trial fees. Bradley’s counsel were retained, but
she was not paying them; her father was. Dunlevy represented
that Bradley’s father was not providing sufficient funds to
BRADLEY v. HENRY 14155
conduct a defense or pay experts. The court of appeal found
that even if Bradley had been present, she could not have
refuted this point because she had no personal knowledge
about whether Dunlevy was being paid. Bradley points to no
evidence to the contrary. In any event, she had no right to
insist on counsel she could not afford. Wheat, 486 U.S. at 159.
The other topic at the hearing was Dunlevy’s concern that
someone (Bradley’s father) was having the prosecutor fol-
lowed and investigated. Bradley had nothing to contribute to
this discussion, either.
Thus, nothing transpired that dealt with the charges against
Bradley, the substantive testimony of any witnesses, or any-
thing else relating to Bradley’s guilt or innocence. Cf. Stincer,
482 U.S. at 745-47 (holding that exclusion of a defendant
from an ex parte in-chambers hearing at which the compe-
tency of two child witnesses was determined did not violate
due process). Nor was Bradley’s ability to defend herself
jeopardized because counsel who could try the case was
appointed. Finally, as the court of appeal found, the trial
judge’s ruling would have been the same no matter what
Bradley might have said because of the age of the case and
the parade of retained attorneys who had been stymied in their
representation of Bradley by her father’s interference. In these
circumstances, the California court’s conclusion is not an
unreasonable application of Stincer.
II
Wheat controls Bradley’s contention that the trial court’s
denial of her January 7, 1999 motion to substitute Jonathan
Jordan for Chris Andrian violated her Sixth Amendment right
to counsel of choice. “[W]hile the right to select and be repre-
sented by one’s preferred attorney is comprehended by the
Sixth Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be repre-
sented by the lawyer whom [s]he prefers.” 486 U.S. at 159.
14156 BRADLEY v. HENRY
Bradley had gone through a half-dozen retained lawyers
when Andrian was appointed and before she sought — thirty-
five days in advance of trial — to change again to retained
counsel. Two of her most recent sets of retained attorneys had
not been paid enough to fund Bradley’s defense. Bradley did
not know whether she personally had the resources to pay Jor-
dan; Jordan indicated only that the financial relationship
between him and Bradley’s father was not a concern “at this
point.” Despite Jordan’s belief (also “at this point”) that he
could be ready for trial in thirty-five days, his consultation up
to that point had been minimal and he had not yet begun to
tackle the materials, which were voluminous. Preparation
would not be simple because this was still a special circum-
stances case. Given the historical interference with timely res-
olution of the case by hiring and firing of lawyers, the trial
court was understandably concerned that Bradley (or her
father) could again attempt to manipulate the system. The
judge was also influenced by the fact that Andrian was court-
appointed, had the assistance of well-qualified staff, and was
prepared to try the case when set. The matter had been pend-
ing for three years, and Bradley had long since been warned
that no further substitutions, and no further continuances,
would be allowed. I cannot say that the California Court of
Appeal unreasonably applied Wheat in upholding the trial
court’s determination.