Release Date: January 19, 2011
Contact:  Michael Rushford
(916) 446-0345

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Unanimous Court Reinstates Conviction in Premo v. Moore

The United States Supreme Court has unanimously reversed a 2009 Ninth Circuit ruling and reinstated the conviction of Oregon murderer Randy Joseph Moore.  The majority opinion of seven Justices found that the Ninth Circuit opinion was “doubly wrong.”  It was one of two high court decisions announced today reversing Ninth Circuit rulings.

At issue in the case of Premo v. Moore was whether the defense attorney’s decision not to seek suppression of his client’s confession constituted ineffective assistance of counsel, invalidating the murderer’s plea bargain.

The California-based Criminal Justice Legal Foundation had joined the case to encourage a decision overturning the Ninth Circuit ruling, arguing that the Oregon court’s decision to reject Moore’s claim of ineffective assistance of counsel was correct and entitled to deference.

Writing for the Court, Associate Justice Anthony Kennedy states that in order to overturn the state court’s decision, “the Court of Appeals had to conclude that both findings would have involved an unreasonable application of clearly established federal law,” noting later that, in drawing that conclusion, “the Court of Appeal erred, for the state-court decision was not an unreasonable application” of federal law.   Later the opinion states, “The Court of Appeals was wrong to accord scant deference to counsel’s judgment, and doubly wrong to conclude it would have been unreasonable to find that the defense attorney qualified as counsel for Sixth Amendment purposes.”

“The state court decision in this case was entirely reasonable,” said Foundation Legal Director Kent Scheidegger.  “The Ninth Circuit, on the other hand, disregarded the state court’s holding and many of the facts it was based upon in order to overturn the conviction of an admitted killer,” he added.

The case involves the kidnapping and murder of Kenneth Rogers on December 7, 1995.  On that day, Moore and others went to Rogers’ home because they believed he had stolen belongings from one of them.  They beat Rogers until he bled, stripped him, bound him in duct tape, placed him in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint.  While marching Rogers through the woods, Moore shot Rogers through the temple.  The next day a passerby discovered the body.  The gun used in the killing was a single action revolver, which must be cocked before it will fire.  Moore confessed shooting Rogers to his older brother, Raymond, and to his stepbrother’s girlfriend, Debbie Ziegler.

Two weeks after the killing, Moore and one of the accomplices visited the police station to talk about the crime.  At the station, officers informed the pair that one of the other accomplices involved had already been arrested.  After being informed that he was not under arrest, Moore was read his Miranda rights, and he initially asked for an attorney.  Moore returned to the station after talking with his brother.  He agreed to talk after the detective told him that if he told the truth, he would give him a fair shake and verify with the DA “that he was not going to turn around and jam you.”  Moore then confessed that he helped kidnap Rogers and was holding the gun when Rogers was shot, but he claimed that the gun had fired accidently.  He later stated that he believed that the detective’s assurance meant that Rogers’ death would be considered an accident.

Moore was subsequently charged with murder.  Prior to trial, Moore’s defense attorney negotiated an agreement with the District Attorney.  Moore would plead no contest to the kidnap and unintentional killing of Rogers.  Under Oregon law, an unintentional killing during the commission of a felony is murder but not eligible for a death sentence. If the case had gone to trial and if the jury did not believe Moore’s dubious accident claim, he could have been convicted of aggravated murder.  That crime is punishable by death, life without parole, or life with parole eligibility after 30 years.  Under the plea bargain, Moore was sentenced to a straight 25 years in prison.

After his conviction and sentence were upheld on direct appeal, Moore sought postconviction relief raising numerous claims against his trial attorney, including that his attorney failed to contest the use of his confession, which he claimed he was tricked into making by the police.  The state court denied the claim, noting that it was unlikely that the motion to suppress the confession would have been granted and that it would have been fruitless because Moore had already confessed to others who could have been witnesses at trial.

On habeas corpus, the Federal District Court also denied the ineffective assistance of counsel claim.  The court noted that a motion to suppress Moore’s confession might have been upheld, but it was unlikely to have affected the case because Moore had confessed to the other witnesses.

Moore’s appeal of that holding to the Ninth Circuit was more successful.  A 2-1 ruling authored by Judge Stephen Reinhardt reversed the District Court ruling.  The court’s holding was based on the premise that if the motion to suppress the confession had been made, it would have been upheld on the grounds that Moore was in police custody when he asked for an attorney, and he was induced into confessing.  Because of this, the court concluded that Moore’s trial attorney had been ineffective, invalidating the conviction.

When the Supreme Court agreed to review that ruling, the Criminal Justice Legal Foundation introduced a scholarly amicus curiae brief pointing to several fundamental errors in the Ninth Circuit’s reasoning.  The state court would probably have held that Moore was not in police custody when he confessed.  The record indicates that during the interview the police clearly told Moore that he was not under arrest and could leave any time he wanted.  Moore’s claim that he was tricked into admitting the crime is similarly shaky.  The detective’s promise not to “jam” Moore was not a promise to let him off with less than the crime he committed.  Moore confessed to the crime of felony murder.  He admitted kidnapping and killing Rogers, but claimed the shooting was accidental.  Moore’s own ignorance of the law that accidental killing during a kidnapping is felony murder does not transform an honest statement by the police into a trick.  While evidence suggests that Moore intentionally shot Rogers, the prosecution agreed to a plea of murder, without intent, during a kidnapping—a very good bargain under the circumstances.

Had the case gone before a jury, the fact that Rogers was shot point blank in the temple, with a gun which had to be cocked before it could be fired, would have been introduced as evidence.  Moore’s brother and his stepbrother’s girlfriend would have been called to testify that he admitted killing Rogers. The Supreme Court’s decision noted this.  Moore’s accomplices could have testified to his participation in the kidnapping and his possession of the gun during the shooting.  Other evidence indicating the brutal details of the abduction would also have been presented to the jury.  It is quite possible that Moore would have been convicted of aggravated murder and sentenced to death.

Finally, CJLF argued that the Antiterrorism and Effective Death Penalty Act of 1996 requires the federal courts to defer to a state court decision unless it violates Supreme Court precedent or unreasonably judges the facts based upon the evidence.

“Today’s decision should be a warning to the federal courts not to engage in unsupported speculation regarding what might have happened had defense counsel done something differently,” said Scheidegger.