Jacqueline Lowery v. Harold J. Cardwell, Superintendent, Arizona State Prison

This habeas corpus appeal is before us for the second time. The problem it presents is that of accommodating a criminal defendant’s rights to fair trial and due process with the ethical duty of defense counsel to refrain from lending support to what he believes to be false testimony.

Appellant was charged by the State of Arizona with first degree murder. She pleaded not guilty and trial was had to the court without a jury. Testimony established that the victim’s body had been found seated in his car, parked in front of a cafe. He had been shot twice at close range. The state’s principal witness testified that he had seen appellant walk to the car with the deceased and stand on the far side of the car — the driver’s side — while the deceased entered the car. Sounds similar to those of the popping of fire crackers had then been heard. The testimony is dis *729 cussed at greater length in our opinion rendered on the prior appeal. 535 F.2d 546, 547-48 (1976).

The appellant took the stand and testified in part as follows:

Counsel then requested a recess which was granted. The trial transcript discloses that in chambers, without appellant being present, the following occurred:

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specially concurring:

Although I do not disagree with the majority’s due process analysis, I would rest the decision on the petitioner’s Sixth Amendment right to effective assistance of counsel. The petitioner sustained her burden of proving that counsel failed to render reasonably effective assistance and that failure resulted in the denial of fundamental fairness. (United States v. Elksnis (9th Cir. 1975) 528 F.2d 236 .)

Under the circumstances that Judge Merrill describes, when defense counsel moved to withdraw, he ceased to be an active advocate of his client’s interests. Despite counsel’s ethical concerns, his actions were so adverse to petitioner’s interests as to deprive her of effective assistance of counsel. No matter how commendable may have been counsel’s motives, his interest in saving himself from potential violation of the canons was adverse to his client, and the end product was his abandonment of a diligent defense. (Cf. McKissick v. United States (5th Cir. 1967) 379 F.2d 754, 762 .)

575 F.2d 727 Jacqueline LOWERY, Plaintiff-Appellant, v. Harold J. CARDWELL, Superintendent, Arizona State Prison, Defendant-Appellee. No. 76-3624. United States Court of Appeals, Ninth Circuit. May 22, 1978. Gerald F. Moore, Phoenix, Ariz., for plaintiff-appellant. Bruce E. Babbitt, Atty. Gen., Phoenix, Ariz., for defendant-appellee. On Appeal from the United States District Court for the District of Arizona. Before MERRILL and HUFSTEDLER, Circuit Judges, and BURNS, * District Judge. MERRILL, Circuit Judge: 1 This habeas corpus appeal is before us for the second time. The problem it presents is that of accommodating a criminal defendant's rights to fair trial and due process with the ethical duty of defense counsel to refrain from lending support to what he believes to be false testimony. 2 Appellant was charged by the State of Arizona with first degree murder. She pleaded not guilty and trial was had to the court without a jury. Testimony established that the victim's body had been found seated in his car, parked in front of a cafe. He had been shot twice at close range. The state's principal witness testified that he had seen appellant walk to the car with the deceased and stand…