Shortly after 8:00 on the morning
of January 7, 1982, Karl LaGrand and his brother, Walter, entered
the Valley National Bank in Marana. Armed with a toy pistol, Karl
tried to force Ken Hartsock, the 63-year-old branch manager, to open
the vault. Hartsock could not open the vault because he had only
half of the combination.
The brothers then forced Hartsock and Dawn Lopez,
a bank clerk, into Hartsock's office and bound them. After
threatening Hartsock with a letter opener, the brothers began
beating him. Hartsock died from 24 stab wounds. Karl and Walter
tried to kill Lopez by stabbing her six times, then fled the bank.
Presiding Judge: J. Richard Hannah
Prosecutor: Michael D. Alfred
Start of Trial: January 31, 1984
Verdict: February 17, 1984
Sentencing: December 14, 1984
Prior conviction involving violence
None sufficient to call for leniency
State v. LaGrand (Karl), 152 Ariz. 483, 733 P.2d 1066 (1987).
Two Bacon, Lettuce & Tomato sandwiches on white
bread, Mayonnaise, 4 fried eggs, over-easy, Medium portion of hash-brown
potatoes, 2 breakfast rolls, small portion of strawberry jelly. One
half pint of pineapple sherbet ice cream, one 22 ounce of hot coffee,
black, one medium slice of German chocolate cake with coconut-caramel
icing, one 12 ounce cup of cold milk.
Karl LaGrand first
got in trouble with the law at age 9 when he stole $9.69 from a
store in Sierra Vista and a pair of shoes from another store two
Karl and his
brother Walter also set fire to a golf course, which did $20,000
damage, while the family lived at a military post in Texas.
Karl and Walter
were convicted of the armed robbery of 3 Tucson supermarkets in a 6-day
period in 1981. They both were imprisoned at that point.
After their release,
the brothers wanted a quick fix for their money woes. On the
morning of January 7, 1982, Walter and Karl LaGrand drove from
Tucson, where they lived, to Marana intending to rob the bank.
They brought a
briefcase with a steak knife, bandanas, electrical tape, police
radio scanner and toy gun inside.
They arrived in
Marana sometime before 8:00 a.m. Because the bank was closed and
empty the LaGrands drove around Marana to pass time. They eventually
drove to the El Taco restaurant adjacent to the bank.
manager of El Taco, testified that he arrived at work at 7:50 a.m.
The moment he arrived, a car with two men inside drove up to the El
Taco. Schunk described the car as white with a chocolate-colored top.
The car's driver,
identified by Schunk as Walter LaGrand, asked Schunk when the El
Taco opened. Schunk replied, "Nine o'clock." The LaGrands then left.
Hartsock, the bank
manager, showed up a few minutes later and brought the U.S. and
Arizona flags outside to be raised for the day.
Karl pulled the toy
gun and ordered him inside the building. A 20-year-old female
teller pulled up a few minutes later. Dawn Lopez arrived for work
at the bank at approximately 8:00 a.m.
When she arrived at
the bank she noticed three vehicles parked in the parking lot: a
motor home; a truck belonging to the bank manager, Ken Hartsock; and
a car which she did not recognize but which she described as white
or off-white with a brown top.
believed that Hartsock might be conducting business and desire some
privacy she left the parking lot and drove around Marana for several
She returned to the
bank and noticed Hartsock standing by the bank door with another man
whom she did not recognize. Lopez parked her car and walked toward
the bank entrance where Hartsock was standing.
As she passed the
LaGrands' car Walter emerged from the car and asked her what time
the bank opened. Lopez replied, "Ten o'clock." Lopez continued
walking and went into the bank.
When she entered
the bank she saw Hartsock standing by the vault with Karl LaGrand.
Karl was wearing a coat and tie and carrying a briefcase. Karl told
her to sit down and opened his jacket to reveal a gun, which was
later found by the police to be a toy pistol.
Walter then came
through the bank entrance and stood by the vault. Lopez testified
that Walter then said, "If you can't open it this time, let's just
waste them and leave." Hartsock was unable to open the vault
because he had only one-half of the vault combination.
The bank employees
told the LaGrand brothers that they only knew half of the
combination to the safe and that they would have to wait for a 3rd
bank employee to report to work before it could be opened.
The LaGrands then
moved Lopez and Hartsock into Hartsock's office where they bound
their victims' hands together with black electrical tape.
The LaGrands became
increasingly anxious as the other employee failed to show up.
Walter accused Hartsock of lying and put a letter opener to his
throat, threatening to kill him if he was not telling the truth.
Lopez and Hartsock then were gagged with bandannas.
another bank employee, had arrived at the bank at approximately 8:10
a.m. Upon arriving, Rogers noticed two strange vehicles in the
parking lot and, fearing that something might be amiss, wrote down
the license plate numbers of the two unknown vehicles.
She then went to a
nearby grocery store and telephoned the bank. Lopez answered the
phone after her gag was removed; her hands remained tied.
Karl held the
receiver to Lopez' ear and listened to the conversation. Lopez
answered the phone. Rogers asked for Hartsock but Lopez denied that
he was there, which struck Rogers as odd because she had seen his
truck in the bank parking lot.
Rogers then told
Lopez that her car headlights were still on, as indeed they were.
Rogers told Lopez that if she did not go out to turn her head-lights
off, then she would call the sheriff.
A few minutes later
Rogers asked someone else to call the bank and they also were told
that Hartsock was not there. Rogers then called the town marshal's
After the first
telephone call the LaGrands decided to have Lopez turn off her
headlights. Her hands were freed and she was told to go turn off the
lights but was warned that "If you try to go--if you try to leave,
we'll just shoot him and leave. We're just going to kill him and
Lopez went to her
car and turned off the lights. Upon her return to the bank her hands
were retied. Hartsock was still bound and gagged in the same chair.
Lopez was seated in a chair, and turned toward a corner of the room.
that Karl LaGrand was about to attack the woman, kicked him in the
shins. A savage response ensued. Lopez testified that soon
thereafter she heard sounds of a struggle.
Hartsock was being hurt, Lopez stood up, broke the tape around her
hands and turned to help him. Lopez testified that for a few seconds
she saw Hartsock struggling with two men. Karl was behind Hartsock
holding him by the shoulders while Walter was in front.
According to Lopez,
Walter then came toward her and began stabbing her. Lopez fell to
the floor, where she could see only the scuffling of feet and
Hartsock lying face down on the floor. She then heard someone twice
say, "Just make sure he's dead."
was slashed and he suffered 23 other knife wounds, at least 6 of
which could have been fatal, investigators said. The woman also was
stabbed 7 times in the head, side and shoulder but survived.
The LaGrands left
the bank and returned to Tucson. Lopez was able to call for help.
When law enforcement and medical personnel arrived at the bank
Hartsock was dead. Lopez was taken to University Hospital in Tucson.
personnel quickly identified the LaGrands as suspects. By 3:15 p.m.,
police had traced the license plate number to a white and brown
vehicle owned by the father of Walter's girl friend, Karen.
The apartment where
the LaGrands were staying with Karen was placed under surveillance.
Shortly thereafter Walter, Karl and Karen left the apartment and
began driving. They were followed and soon pulled over. Walter and
Karl were then arrested and the car was searched.
was also searched and a steak knife similar to one found at the bank
was seized. Karl's fingerprint was found at the bank. A briefcase
containing a toy gun, black electrical tape, a red bandanna, and
other objects was found beneath a desert bush and turned over to the
after their apprehension, Walter made no statements, but Karl
confessed to the crimes in two different statements.
He stated that he
had stabbed Hartsock and Lopez, but that Walter had not stabbed
anyone and that Walter had been out of the room at the time.
Following a jury
trial, both were convicted on all charges. After considering
mitigating and aggravating circumstances, the judge sentenced both
defendants to death.
Karl LaGrand, 35 - 99-2-24 -
Florence, a German citizen who chose the gas chamber over lethal
injection in a bid to avoid execution was put to death by injection
Wednesday after being given a last-minute choice.
LaGrand, convicted of stabbing a bank manager to death with a letter
opener during a 1982 robbery, was given the chance to switch to
lethal injection even though he had chosen death by gas. That
delayed his execution for more than 2 hours.
apologized to the family of his victim and to a woman injured during
the robbery. He was pronounced dead at 8 p.m., 3 minutes after the
brother, Walter, is scheduled to be executed next week for the same
crime. He also chose the gas chamber over lethal injection.
was front page news in Germany, which has no death penalty. The
LaGrands' mother married an American serviceman and moved to the
United States when they were boys. German officials, including that
country's ambassador to the United States, testified on Karl
LaGrand's behalf at a clemency hearing Tuesday.
was the 1st German citizen executed in the United States since World
War II, when several prisoners of war were hanged.
LaGrands and their attorneys gambled that an appeals court would buy
their argument that death by gas is cruel and unusual punishment,
even though they chose the method. Those sentenced to death before
1992, when Arizona voters approved execution by injection, choose
between gas and lethal injection.
U.S. Circuit Court of Appeals ordered a stay for Karl LaGrand early
Wednesday. But the U.S. Supreme Court lifted the stay late Wednesday
Justice John Paul Stevens
dissented, saying he believed that the questions raised merited more
consideration. Among them was whether gas is cruel and unusual and
whether inmates who chose gas waive their right to appeal the
though the state was supposed to execute LaGrand in the gas chamber,
Gov. Jane Hull directed state officials to offer him the option of
death by injection because it is more humane, said Francie Noyes,
the governor's spokeswoman.
General Janet Napolitano, however, said LaGrand's attorneys
approached state officials. She said she approved the change with
the governor's approval.
know why he changed his mind," Napolitano said.
of the 9th Circuit in 1994 concluded prisoners executed in the gas
chamber in California suffered "intense, visceral pain" and that "cyanide-induced
cellular suffocation causes anxiety, panic, terror and pain," in
violation of the constitutional ban on cruel and unusual punishment.
ruling, California revised its laws to make injection the primary
method of execution, although inmates condemned before 1993 could
still choose the gas chamber.
Supreme Court, hearing the case on appeal, vacated the appellate
court's decision that lethal gas was cruel and unusual. It remanded
the case to the 9th Circuit with instructions to reconsider the
decision since California had made injection the primary method of
LaGrand's attorneys gambled
that the high court would revisit the gas chamber issue and side
with the 9th Circuit this time.
LaGrand, 35, and Walter LaGrand, 37, were convicted of killing
Kenneth Hartsock, 63, during a botched bank robbery in rural Marana
on Jan. 7, 1982. Karl LaGrand was convicted of cutting Hartsock's
throat and stabbing him 24 times with a letter opener taken from the
Tuesday, the State Board of Executive Clemency rejected pleas for
clemency from a German delegation that included Jurgen Chrobog,
Germany's ambassador to the United States, and parliament member
had appealed to U.S. officials, including President Clinton, to
intervene in the case.
officials complained that they didn't learn of the brothers' case
until 1992 - 8 years after they were condemned to die. International
law requires nations to notify consulates when foreign citizens have
Arizona officials say the LaGrands were afforded all the legal
rights of any U.S. citizen.
133 F.3d 1253
Terry Stewart,* Director, Arizona Departmentof
Walter Burnhart Lagrand,
Terry Stewart,* Director, Arizona Department of
United States Court of Appeals,
Argued and Submitted March 22,
Decided Jan. 16, 1998
Appeals from the United
States District Court for the District of
Arizona; John M. Roll, District Judge, Presiding.
D.C. No. CV-92-00026-JMR.
Before: HUG, Chief Judge, and
PREGERSON and T.G. NELSON, Circuit Judges.
Opinion by Judge T.G. NELSON;
Dissent by Judge PREGERSON.
T.G. NELSON, Circuit Judge:
Arizona death row inmates
Walter and Karl LaGrand appeal the district
court's denial of their petitions for writ
of habeas corpus. We have jurisdiction of
these consolidated appeals pursuant to 28
U.S.C. § 1291, and we affirm.
* FACTS AND PROCEDURAL
LaGrand (Walter) and Karl LaGrand (Karl) (collectively
"the LaGrands") were each convicted of first-degree
murder, attempted murder in the first degree,
attempted armed robbery and two counts of
kidnapping. The Arizona Supreme Court gave
this account of the crimes in Walter's
arises from a series of events which
occurred during a bungled attempt to rob the
Valley National Bank in Marana, Arizona, on
January 7, 1982.
morning Walter and Karl LaGrand drove from
Tucson, where they lived, to Marana
intending to rob the bank. They arrived in
Marana sometime before 8:00 a.m. Because the
bank was closed and empty the LaGrands drove
around Marana to pass time. They eventually
drove to the El Taco restaurant adjacent to
Schunk, manager of El Taco, testified that
he arrived at work at 7:50 a.m. The moment
he arrived, a car with two men inside drove
up to the El Taco. Schunk described the car
as white with a chocolate-colored top. The
car's driver, identified by Schunk as Walter
LaGrand, asked Schunk when the El Taco
opened. Schunk replied, "Nine o'clock." The
LaGrands then left.
arrived for work at the bank at
approximately 8:00 a.m. When she arrived at
the bank she noticed three vehicles parked
in the parking lot: a motor home; a truck
belonging to the bank manager, Ken Hartsock;
and a car which she did not recognize but
which she described as white or off-white
with a brown top.
Lopez believed that Hartsock might be
conducting business and desire some privacy
she left the parking lot and drove around
Marana for several minutes. She returned to
the bank and noticed Hartsock standing by
the bank door with another man whom she did
not recognize. Lopez parked her car and
walked toward the bank entrance where
Hartsock was standing.
passed the LaGrands' car Walter emerged from
the car and asked her what time the bank
opened. Lopez replied, "Ten o'clock." Lopez
continued walking and went into the bank.
When she entered the bank she saw Hartsock
standing by the vault with Karl LaGrand.
Karl was wearing a coat and tie and carrying
her to sit down and opened his jacket to
reveal a gun, which was later found by the
police to be a toy pistol. Walter then came
through the bank entrance and stood by the
vault. Lopez testified that Walter then said,
"If you can't open it this time, let's just
waste them and leave." Hartsock was unable
to open the vault because he had only one-half
of the vault combination.
LaGrands then moved Lopez and Hartsock into
Hartsock's office where they bound their
victims' hands together with black
electrical tape. Walter accused Hartsock of
lying and put a letter opener to his throat,
threatening to kill him if he was not
telling the truth. Lopez and Hartsock then
were gagged with bandannas.
Rogers, another bank employee, had arrived
at the bank at approximately 8:10 a.m. Upon
arriving Rogers noticed two strange vehicles
in the parking lot and, fearing that
something might be amiss, wrote down the
license plate numbers of the two unknown
went to a nearby grocery store and
telephoned the bank. Lopez answered the
phone after her gag was removed; her hands
remained tied. Karl held the receiver to
Lopez' ear and listened to the conversation.
Lopez answered the phone. Rogers asked for
Hartsock but Lopez denied that he was there,
which struck Rogers as odd because she had
seen his truck in the bank parking lot.
then told Lopez that her car headlights were
still on, as indeed they were. Rogers told
Lopez that if she did not go out to turn her
headlights off, then she would call the
sheriff. A few minutes later Rogers asked
someone else to call the bank and they also
were told that Hartsock was not there.
Rogers then called the town marshal's
first telephone call the LaGrands decided to
have Lopez turn off her headlights. Her
hands were freed and she was told to go turn
off the lights but was warned that "If you
try to go-if you try to leave, we'll just
shoot him and leave. We're just going to
kill him and leave." Lopez went to her car
and turned off the lights.
return to the bank her hands were retied.
Hartsock was still bound and gagged in the
same chair. Lopez was seated in a chair, and
turned toward a corner of the room. Lopez
testified that soon thereafter she heard
sounds of a struggle.
that Hartsock was being hurt, Lopez stood
up, broke the tape around her hands and
turned to help him. Lopez testified that for
a few seconds she saw Hartsock struggling
with two men. Karl was behind Hartsock
holding him by the shoulders while Walter
was in front.
to Lopez, Walter then came toward her and
began stabbing her. Lopez fell to the floor,
where she could see only the scuffling of
feet and Hartsock lying face down on the
floor. She then heard someone twice say, "Just
make sure he's dead."
LaGrands left the bank and returned to
Tucson. Lopez was able to call for help.
When law enforcement and medical personnel
arrived at the bank Hartsock was dead. He
had been stabbed 24 times. Lopez, who had
also been stabbed multiple times, was taken
to University Hospital in Tucson.
enforcement personnel quickly identified the
LaGrands as suspects. By 3:15 p.m., police
had traced the license plate number to a
white and brown vehicle owned by the father
of Walter's girl friend, Karen Libby. The
apartment where the LaGrands were staying
with Karen Libby was placed under
thereafter Walter, Karl and Karen Libby left
the apartment and began driving. They were
followed and soon pulled over. Walter and
Karl were then arrested and the car was
searched. Karen Libby's apartment was also
searched and a steak knife similar to one
found at the bank was seized. Karl's
fingerprint was found at the bank. A
briefcase containing a toy gun, black
electrical tape, a red bandanna, and other
objects was found beneath a desert bush and
turned over to the police.
LaGrand, 153 Ariz. 21, 734 P.2d 563, 565-66
questioned after their apprehension, Walter
made no statements, but Karl confessed to
the crimes in two different statements. He
stated that he had stabbed Hartsock and
Lopez, but that Walter had not stabbed
anyone and that Walter had been out of the
room at the time.
a jury trial, both were convicted on all
charges. After considering mitigating and
the judge sentenced both defendants to death.
The Arizona Supreme Court affirmed the
convictions and sentences. State v. Karl
LaGrand, 152 Ariz. 483, 733 P.2d 1066
(1987); State v. Walter LaGrand, supra. The
Supreme Court of the United States denied
certiorari. 484 U.S. 872, 108 S.Ct. 206, 98
L.Ed.2d 157 (1987).
LaGrands then filed post-conviction relief
petitions in the Arizona Superior Court (trial
court) which were denied in 1989. The
Arizona Supreme Court denied review as did
the United States Supreme Court. 501 U.S.
1259, 111 S.Ct. 2910, 2911, 115 L.Ed.2d 1074
(1991). The LaGrands then filed petitions
for writ of habeas corpus pursuant to 28
U.S.C. § 2254. The district court, in a
series of orders, denied relief, LaGrand v.
Lewis, 883 F.Supp. 469 (D.Ariz.1995),
LaGrand v. Lewis, 883 F.Supp. 451 (D.Ariz.1995),
and these timely appeals followed.
facts necessary to the discussion of the
several issues are contained in the portions
of this opinion in which the issues are
Karl raise a number of issues jointly, which
we discuss prior to reaching their
related arguments are advanced relative to
the trial court's finding of expectation of
pecuniary gain as an aggravating factor.
First, the LaGrands contend that the finding
of pecuniary gain was arbitrary or
irrational. The trial court's finding was
affirmed by the Arizona Supreme Court in its
independent review. That court said:
We do not
believe the defendant must intend beforehand
to kill as well as to rob to satisfy the
statute. A.R.S. § 13-703(F)(5). Nor do we
believe that an absence of actual receipt of
money or valuables negates a finding of
expectation of pecuniary gain as an
case, the attempted robbery permeated the
entire conduct of the defendant. The
defendant may have reacted irrationally to
the failure or inability of the victim to
open the safe but the murder was neither
accidental nor unexpected.
defendant was there was his expectation of
pecuniary gain and the reason he stabbed the
victim was because the victim was unable to
open the safe, frustrating defendant's
continuing attempt for pecuniary gain. The
defendant's goal of pecuniary gain caused
the murder and the murder was in furtherance
of his goal. We agree with the trial court's
finding that the defendant's expectation of
pecuniary gain was an aggravating factor.
LaGrand, 153 Ariz. at 36, 734 P.2d at 578 (footnote
Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092,
3102, 111 L.Ed.2d 606 (1990), a case arising
in Arizona, held that federal court review
of such a finding by the state court "is
limited, at most, to determining whether the
state court's finding was so arbitrary or
capricious as to constitute an independent
due process or Eighth Amendment violation."
The Court went on to say:
A state court's finding
of an aggravating circumstance in a
particular case-including a de novo finding
by an appellate court that a particular
offense is "especially heinous ... or
depraved"-is arbitrary or capricious if and
only if no reasonable sentencer could have
783, 110 S.Ct. at 3103.
sole purpose of the journey to the bank was
to rob it. The LaGrands threatened the
victims with death in order to obtain entry
to the vault. In fact, Walter LaGrand
admitted in his trial testimony that he held
a letter opener to Ken Hartsock's neck as a
threat. A rational sentencer could have
found the existence of the pecuniary gain
the LaGrands argue that the Arizona Supreme
Court broadened the definition of pecuniary
gain in violation of both the Due Process
Clause and the Ex Post Facto Clause of the
Constitution. Their basic argument is that
the Arizona Supreme Court, in saying that
the intent to rob "infects" all other
actions, "effectively wipes out any
requirement to prove the aggravating factor
beyond a reasonable doubt."
Post Facto Clause does not apply to court
decisions construing statutes. "The Ex Post
Facto Clause is a limitation upon the powers
of the Legislature, see Calder v. Bull, 3
Dall. [U.S.] 386, 1 L.Ed. 648 (1798), and
does not of its own force apply to the
Judicial Branch of government." Marks v.
United States, 430 U.S. 188, 191, 97 S.Ct.
990, 992, 51 L.Ed.2d 260 (1977).
It is the
Due Process Clause, rather than the Ex Post
Facto Clause, which protects criminal
defendants against novel developments in
judicial doctrine. See, e.g., Bouie v.
Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12
L.Ed.2d 894 (1964). See also United States
v. Ruiz, 935 F.2d 1033, 1035 (9th Cir.1991).
However, an unforeseeable judicial
construction of a statute may run afoul of
the Due Process Clause because of the same
policy underlying the Ex Post Facto Clause-lack
of "fair warning of that conduct which will
give rise to criminal penalties." Marks, 430
U.S. at 191, 97 S.Ct. at 992-93.
Arizona statutory scheme was clear in 1982.
The felony murder statute provided that
robbery or attempted robbery were predicate
felonies, and that the statute applied if,
"in the course of and in furtherance of such
offense or immediate flight from such
offense, [the defendant] causes the death of
any person." A.R.S. § 13-1105(A)(2).
capital punishment statute provided that
defendant's expectation of the receipt of
something of pecuniary value was an
aggravating factor. A.R.S. § 13-703(F)(5).
So, unless the Arizona Supreme Court had
narrowed the clear terms of the statutes to
a robber's benefit prior to the LaGrands'
commission of the murder, there was no due
cited by the LaGrands do not support the
result they seek. Two of them, State v.
Jordan, 126 Ariz. 283, 614 P.2d 825 (in banc
), cert. denied, 449 U.S. 986, 101 S.Ct.
408, 66 L.Ed.2d 251 (1980), and State v.
Jeffers, 135 Ariz. 404, 661 P.2d 1105 (in
banc ), cert. denied, 464 U.S. 865, 104 S.Ct.
199, 78 L.Ed.2d 174 (1983), did not involve
reliance on the pecuniary gain factor.
Nor do the
other cases cited support their argument.
State v. Correll, 148 Ariz. 468, 479, 715
P.2d 721, 732 (1986) (in banc ), involved
murders committed in order to insure that no
one be left to identify the robbers ("The
only motivation for the killings was to
leave no witnesses to the robbery."). State
v. Hensley, 142 Ariz. 598, 604, 691 P.2d
689, 695 (1984) (in banc ), was much the
same ("In this case, the murders were a part
of the overall scheme of the robbery with
the specific purpose to facilitate the
language in Hensley from an earlier case
indicating that "an unexpected or accidental
death that was not in furtherance of the
defendant's goal of pecuniary gain" would
not support a finding of the aggravating
circumstance. Id. 142 Ariz. at 603, 691 P.2d
at 694 (quoting State v. Harding, 137 Ariz.
278, 296, 670 P.2d 383, 401 (1983) (Gordon,
J., concurring), cert. denied, 465 U.S.
1013, 104 S.Ct. 1017, 79 L.Ed.2d 246
LaGrands' argument seems to be premised on
their claim that the killing was not in
furtherance of the robbery, but rather came
about when Ken Hartsock kicked Karl during a
struggle, and Karl impulsively reacted by
stabbing him. However, this argument is
contrary to Dawn Lopez's testimony that she
saw both men involved in a struggle with Ken
Hartsock and her testimony that she twice
heard at least one of them say "make sure
Lopez's evidence is consistent with a murder
committed in order to eliminate witnesses.
The LaGrands' argument is also contrary to
finding of the district court: "The court
finds beyond a reasonable doubt that both
defendants participated in the actual
killing of Mr. Hartsock and that both
defendants intended to kill him."
Arizona Supreme Court's decisions in the
LaGrand cases were not an unforeseeable
departure from its existing jurisprudence,
and no due process violation occurred.
Poland v. Stewart, 117 F.3d 1094, 1098-1100
LaGrands contend that, as German nationals,
they were entitled to contact the German
consulate upon being arrested and that the
Arizona authorities' failure to inform them
of this right violated their constitutional
rights. The Vienna Convention on Consular
Relations of 1963, Article 36, TIAS 6820, 21
U.S.T. 77,596 UNTS 261 (Ratified by United
States Senate on December 24, 1969) ("The
Treaty"), requires the receiving state (here,
the United States) to allow nationals of the
sending state (here, Germany) to notify
their national consulate after they are
arrested. The authorities of the receiving
state are required to inform the arrested
foreign national "without delay of his
rights under this sub-paragraph." Id.
undisputed that the State of Arizona did not
notify the LaGrands of their rights under
the Treaty. It is also undisputed that this
claim was not raised in any state proceeding.
The claim is thus procedurally defaulted.
address the merits of a procedurally
defaulted claim if the petitioner can show
cause for the procedural default and actual
prejudice as a result of the alleged
violations of federal law. Bonin v. Calderon,
77 F.3d 1155, 1158 (9th Cir.), cert. denied,
516 U.S. 1143, 116 S.Ct. 980, 133 L.Ed.2d
demonstrate cause, the petitioner must show
the existence of "some objective factor
external to the defense [which] impeded
counsel's efforts to comply with the State's
procedural rule." Murray v. Carrier, 477
U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d
397 (1986); see also McCleskey v. Zant, 499
U.S. 467, 497, 111 S.Ct. 1454, 1471-72, 113
L.Ed.2d 517, reh'g denied, 501 U.S. 1224,
111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991)
(cause is external impediment such as
government interference or reasonable
unavailability of claim's factual basis).
Lacking cause and prejudice, we may
nonetheless consider procedurally barred
claims if failure to do so would result in
the conviction or execution of " 'one who is
actually innocent.' " Schlup v. Delo, 513
U.S. 298, 321, 115 S.Ct. 851, 864, 130 L.Ed.2d
cause, the LaGrands argue ineffective
assistance of counsel. In Karl's case, he
was represented by one lawyer at trial, a
second lawyer on appeal, a third lawyer in
his state post-conviction relief (PCR)
proceeding and present counsel on his
federal habeas. Karl has offered no support
for his argument that something external to
the defense prevented his lawyer from
presenting this claim to the state courts,
except ineffective assistance of trial
counsel. He has not, however, argued, let
alone shown, that any external factor
prevented his counsel in the state PCR
proceeding from presenting this claim. He
has therefore not shown cause.
who has had the same lawyer throughout,
signed a waiver of his right to present
ineffective assistance of counsel claims. We
will discuss this waiver in more detail when
we reach Walter's individual claims. The
waiver is sufficient to preclude using his
lawyer's ineffective assistance as cause for
failing to present this claim to the state
courts. Thus, the LaGrands have failed to
demonstrate cause for their procedural
defaults in state court.
LaGrands argue that they meet the
fundamental miscarriage of justice standard
since they are actually innocent of the
death penalty. Their basic argument is that
the failure to notify them of their right to
contact the German consulate "effectively
blocked LaGrands' ability to gather
exculpatory or mitigating evidence." The
Supreme Court has stated, however, that
actual innocence of the death penalty must
focus on eligibility for the death penalty,
and not on additional mitigation. Sawyer v.
Whitley, 505 U.S. 333, 345-46, 112 S.Ct.
2514, 2523, 120 L.Ed.2d 269 (1992).
evidence the LaGrands contend they were
blocked from obtaining relates to background
information concerning their abusive
childhoods in Germany and the difficulties
that children of mixed marriages encountered
in Germany. While this evidence could have
related to mitigation, it has no
demonstrable connection to the findings of
pecuniary gain or that the murder was
committed in an especially cruel, heinous or
depraved manner. Because the postulated
evidence does not go to eligibility for the
death penalty, the LaGrands do not
substantiate their claim of actual innocence.
Constitutionality of Arizona's Felony Murder
LaGrands requested a second-degree murder
instruction as a lesser-included offense to
the felony murder charge. The trial court
denied the request as Arizona felony murder
law does not include any lesser-included
offenses. State v. LaGrand, 153 Ariz. at
30-31, 734 P.2d at 572-73. The LaGrands
challenge the court's refusal to give the
lesser-included instruction on the basis
that the ruling was contrary to the teaching
of Beck v. Alabama, 447 U.S. 625, 100 S.Ct.
2382, 65 L.Ed.2d 392 (1980), and thus
violated the Constitution.
the Supreme Court considered a unique
Alabama statute under which the jury was
given only a choice of conviction of capital
murder or acquittal. The Supreme Court
reversed Beck's conviction on the basis that
the limited choices available to the jury
impermissibly enhanced "the risk of an
unwarranted conviction." Id. at 637, 100
S.Ct. at 2389. "The goal of the Beck rule
... is to eliminate the distortion of the
factfinding process that is created when the
jury is forced into an all-or-nothing choice
between capital murder and innocence." Schad
v. Arizona, 501 U.S. 624, 646-47, 111 S.Ct.
2491, 2505, 115 L.Ed.2d 555 (1991).
instant case, however, the all-or-nothing
scenario condemned in Beck did not exist. As
to the charge of murder in count one, the
jury was told it could return verdicts of
guilty of murder in the first degree, murder
in the second degree or not guilty. The
LaGrands were charged with first-degree
was told that the crime could be committed
as a felony murder or as premeditated murder.
An instruction on second-degree murder was
given, as was a possible verdict of second-degree
murder as to Count One. The jury was not
specifically told that second-degree murder
was not a lesser-included offense to felony
murder, although a close reading of the
instructions could have led the jury to that
was also given the choice of convicting or
acquitting the defendants of attempted first-degree
murder, attempted second-degree murder,
aggravated assault, armed robbery, robbery
and kidnapping in the other counts. In the
event the jury had found itself unable to
agree on a conviction of first-degree murder,
it would not have had to face the choice of
simply acquitting the LaGrands.
instructions in the instant case do not
implicate the concerns of the Beck doctrine
because the LaGrands' jury was not faced
with the "all or nothing" choice presented
in Beck. See Schad, 501 U.S. at 646-47, 111
S.Ct. at 2505 (no Beck error where
instruction does not present jury with "all-or-nothing
choice between the offense of conviction
(capital murder) and innocence") (quotations
LaGrands argue that the state courts did not
adequately consider the mitigation evidence
presented at the sentencing. They rely on
the panel opinion in Jeffers v. Lewis, 974
F.2d 1075, 1079 (9th Cir.1992): "[when]
there is a risk that mitigating evidence in
[a] case was not fully considered, [Petitioner's]
sentence of death cannot stand."
this court took the Jeffers case en banc,
and affirmed the district court's denial of
the petition. Jeffers v. Lewis, 38 F.3d 411
(9th Cir.1994), cert. denied, 514 U.S. 1071,
115 S.Ct. 1709, 131 L.Ed.2d 570 (1995).
There we said, quoting Jeffries v. Blodgett,
5 F.3d 1180, 1197 (9th Cir.1993), cert.
denied, 510 U.S. 1191, 114 S.Ct. 1294, 127
L.Ed.2d 647 (1994): "[D]ue process does not
require that the sentencer exhaustively
document its analysis of each mitigating
factor as long as a reviewing federal court
can discern from the record that the state
court did indeed consider all mitigating
evidence offered by the defendant." Jeffers,
38 F.3d at 418.
LaGrands do not argue that the state courts
refused to consider any of their proffered
mitigating evidence. They argue that the
mitigating circumstances were not considered
"fully." However, the federal courts do not
review the imposition of the sentence de
novo. Here, as in the state courts' finding
of the existence of an aggravating factor,
we must use the rational fact-finder test of
Lewis v. Jeffers. That is, considering the
aggravating and mitigating circumstances,
could a rational fact-finder have imposed
the death penalty? The answer is "yes."
aggravating circumstances of pecuniary gain,
a murder committed in an especially heinous,
cruel or depraved manner and prior
conviction of a felony involving the use or
threat of violence were well supported in
the record. While there were mitigating
factors, such as the LaGrands' ages (Walter
was 19; Karl, 18), their prior home life and
their remorse, a rational sentencer could
have nevertheless imposed the death penalty.
District Court's Upholding of Death Penalty
LaGrands argue that the death penalty should
not have been upheld by the district court.
They point out that the Supreme Court has
said that "the death penalty can be upheld
in only the most egregious cases," citing
Godfrey v. Georgia, 446 U.S. 420, 427, 100
S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980), and
that the death penalty "is reserved for
truly exceptional cases," citing State v.
Bible, 175 Ariz. 549, 606, 858 P.2d 1152,
1209 (1993). They argue that this case does
not come within the "truly exceptional"
LaGrands in effect ask us to review the
Arizona Supreme Court's determination that
the imposition of the death penalty in their
case was not disproportionate to the penalty
imposed in similar cases. See State v.
Walter LaGrand, 153 Ariz. at 37, 734 P.2d at
579; State v. Karl LaGrand, 152 Ariz. at
488-90, 733 P.2d at 1072-73.
once the Arizona Supreme Court "undertook
its proportionality review in good faith and
found that [the LaGrands'] sentence was
proportional to the sentences imposed" in
similar cases, "[t]he Constitution does not
require [the federal habeas court] to look
behind that conclusion." Lewis v. Jeffers,
497 U.S. 764, 779, 110 S.Ct. 3092, 3101, 111
L.Ed.2d 606 (1990) (quoting Walton v.
Arizona, 497 U.S. 639, 655-56, 110 S.Ct.
3047, 3058, 111 L.Ed.2d 511 (1990)). There
is no indication that the Arizona Supreme
Court's proportionality review was conducted
in bad faith. The LaGrands' proportionality
claim therefore fails.
LaGrands also contend that the state courts
and the federal district court improperly "assumed"
the existence of the aggravating factor of
"cruel, heinous or depraved," rather than
finding its existence beyond a reasonable
doubt. However, the state courts did indeed
premise their finding of "cruel, heinous or
depraved" upon specific evidence of
Hartsock's physical and mental suffering,
the LaGrands' infliction of gratuitous
violence upon and mutilation of Hartsock,
and Hartsock's position of helplessness. See
State v. Walter LaGrand, 153 Ariz. at 36-37,
734 P.2d at 578-79. The state trial court
found that this aggravating circumstance had
been established beyond a reasonable doubt.
See id. at 34, 734 P.2d at 576. Accordingly,
this claim also fails.
Arizona, all condemned prisoners will be
executed by means of lethal injection unless
those who were sentenced before the Arizona
legislature adopted lethal injection
affirmatively choose lethal gas as the
method to be used in their cases. A.R.S. §
13-704(B). The LaGrands come within the
group having this option under state law.
Thus, they would be executed by lethal gas
only if they affirmatively choose to do so.
held in Poland v. Stewart, 117 F.3d 1094,
1104 (9th Cir.1997), that Poland's claim
that lethal gas was an unconstitutional
method of execution was not ripe. For the
same reasons, the LaGrands' claim is not
ripe and cannot be considered. Id.
Lethal Injection as a Method of Execution
LaGrands also contend that lethal injection
is an unconstitutional method of execution.4
In support of this claim, they submitted the
reports of eyewitnesses to two Arizona
executions using lethal injection. One
report, published in the Arizona Republic on
March 3, 1993, said that John George Brewer
"was pronounced dead at 12:18 a.m., one
minute after he received a combination of
three drugs injected through a pair of
of the execution of James Dean Clark was
published in the same paper on April 15,
1993, but with a different by-line. The
Then as three lethal
drugs surged into his veins at 12:05 a.m.,
Clark's chest heaved several times, and his
skin turned ashen.... Because it didn't look
like he simply was going to sleep, Clark's
execution was much more gruesome, intense,
bizarre and dramatic than I had anticipated.
But it was also much easier to watch than I
expected, because Clark didn't appear to
suffer nearly as much as Don Eugene Harding,
who died in the gas chamber last April.
LaGrands also submitted an affidavit from an
observer of the lethal gas execution of Don
Harding took ten minutes and thirty-one
seconds to die. At least eight of those
minutes were spent in gross and brutal agony....
Then I will never forget the look on his
face when he turned to me several seconds
after first having inhaled the fumes. It is
an image of atrocity that will haunt me for
the rest of my life. Don Harding's death was
slow, painful, degrading and inhumane.... He
literally choked and convulsed to death in
front of my eyes.
addition to the reports mentioned above, the
LaGrands submitted the affidavit of one
Michael L. Radelet, prepared for a separate
capital case in Arizona. Radelet, a
sociologist who collected reports of "botched"
executions, described what happened in nine
executions by lethal injection. They
involved either problems in finding a
suitable vein or violent reactions to the
drugs. None took place in Arizona and none
were tied to the protocol used in Arizona.
LaGrands also submitted the affidavit of a
doctor on the staff of the College of
Medicine at the University of Arizona who
reviewed the procedures established for the
administration of lethal injection in
Arizona. Apparently he did not witness
either of the two executions in Arizona by
lethal injection. His ultimate conclusion
was that the procedures were flawed, but his
affidavit is replete with speculation.
example, he states at some length the
possible consequences of administering the
designated drugs in the wrong sequence.
While he states that there may be some risk
of this, the two Arizona executions
recounted in the other materials show no
such problems in actual practice. See
Campbell v. Wood, 18 F.3d 662, 668 (9th
Cir.) ("The risk of accident cannot and need
not be eliminated from the execution process
in order to survive constitutional review."),
cert. denied, 511 U.S. 1119, 114 S.Ct. 2125,
128 L.Ed.2d 682 (1994).
LaGrands' challenge is similar to that
rejected in Poland, 117 F.3d at 1104-05, and
the district court did not err in rejecting
their challenge to Arizona's use of lethal
injection as a method of execution.
two separate recorded statements in the late
hours of January 7 and early hours of
January 8. In those statements he assumed
sole responsibility for the attack on Ken
Hartsock, saying it occurred after Mr.
Hartsock kicked him in the leg. He said that
Walter did not stab anyone and that Walter
was not in the room when he stabbed Mr.
Hartsock and Ms. Lopez.
to the stipulation of the parties, the trial
court ruled that the confessions were
voluntary but that they were taken in
violation of Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
This precluded the State from introducing
the confessions as evidence in the guilt
phase of the trial against Karl. The Miranda
stipulation did not, however, preclude
Walter from introducing the confessions as
part of his defense. Walter thus sought to
have the confessions introduced under
Arizona Rule of Evidence 804(b)(3), which is
identical to Federal Rule of Evidence
804(b)(3). The rule provides as follows:
Rule 804. Hearsay
Exceptions; Declarant Unavailable
Hearsay exceptions. The following are not
excluded by the hearsay rule if the
declarant is unavailable as a witness:
Statement against interest. A statement
which was at the time of its making so far
contrary to the declarant's pecuniary or
proprietary interest, or so far tended to
subject him to civil or criminal liability
... that a reasonable man in his position
would not have made the statement unless he
believed it to be true. A statement tending
to expose the declarant to criminal
liability and offered to exculpate the
accused is not admissible unless
corroborating circumstances clearly indicate
the trustworthiness of the statement.
at 26-27, 734 P.2d at 568-69 (quoting A.R.S.
Rule of Evid. 804(b)(3)). After considering
Walter's request on four separate occasions,
the trial court held the confessions were
inadmissible at the guilt phase of the trial.
from the LaGrands' convictions, the Arizona
Supreme Court explained the proper method of
determining admissibility under Rule
We therefore hold that a
judge's inquiry, made to assure himself that
the corroboration requirement of Rule
804(b)(3) has been satisfied, should be
limited to asking whether evidence in the
record corroborating and contradicting the
declarant's statement would permit a
reasonable person to believe that the
statement could be true. If a judge believes
that a reasonable person could [so] conclude
... then the judge must admit the statement
Walter LaGrand, 153 Ariz. at 36, 734 P.2d at
this standard, the Arizona Supreme Court
concluded that the trial court's refusal to
admit the statements was not in error:
both corroborating and contradicting Karl's
statements exists. The following evidence
corroborated Karl's statements: Karl did
have a bruise on his leg as he stated; Lopez
testified that she saw Hartsock kick someone;
Lopez testified that only one person stabbed
her; and Walter testified that he was out of
the room when the stabbings occurred.
following evidence contradicted Karl's
statements: Lopez testified that she saw
Hartsock struggling with two men; Lopez
testified that she was "positive" that
Walter had stabbed her; Lopez testified that
after being stabbed by Walter and falling to
the floor one brother said to the other
twice, "Just make sure he's dead"; and the
forensic consultant who performed an autopsy
on Hartsock testified that more than one
instrument was used to inflict Hartsock's
reviewing the above corroborating and
contradicting evidence, we do not think that
a reasonable person could conclude from the
same corroborating and contradictory
evidence that Karl's exculpatory statements
could be true. The trial judge properly
denied admission of Karl's statements.
Ariz. at 29, 734 P.2d at 571.
argument here is that exclusion of the
confessions violated his Sixth Amendment
right to "present a complete defense" to the
charges against him. California v. Trombetta,
467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81
L.Ed.2d 413 (1984). He relies on "the
Chambers doctrine" derived from Chambers v.
Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973).
was convicted of killing a policeman in a
small town in Mississippi. Gable McDonald
had confessed to killing the officer in a
statement to Chambers' lawyer, but he later
repudiated the confession.
Chambers attempted to show he did not shoot
the officer. He also tried to show that
McDonald was the shooter. The trial court
would not permit Chambers to introduce the
testimony of three witnesses to whom
McDonald had admitted shooting the officer
on the grounds that the proffered testimony
was hearsay. Mississippi recognized
statements against pecuniary interest, but
not statements against penal interest, as an
exception to the hearsay rule.
reversed Chambers' conviction, saying:
The testimony rejected by
the trial court here bore persuasive
assurances of trustworthiness and thus was
well within the basic rationale of the
exception for declarations against interest.
That testimony also was critical to
Chambers' defense. In these circumstances,
where constitutional rights directly
affecting the ascertainment of guilt are
implicated, the hearsay rule may not be
applied mechanistically to defeat the ends
410 U.S. at 302, 93 S.Ct. at 1049.
is but one of several Supreme Court
decisions dealing with state rules of
evidence used to reject a defendant's
evidence on "mechanistic" grounds. In Green
v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60
L.Ed.2d 738 (1979), the Court again reversed
a conviction where the Georgia courts had
rejected hearsay statements on the ground
that Georgia did not recognize the penal
interest exception to the hearsay rule.
case, Washington v. Texas, 388 U.S. 14, 87
S.Ct. 1920, 18 L.Ed.2d 1019 (1967), involved
Texas statutes which prohibited persons
charged or convicted as co-participants in a
crime from testifying for each other, though
they could testify for the State.
Washington's proffer of testimony tended to
show that Washington was not the shooter.
The evidence was rejected pursuant to the
Texas statutes. The Supreme Court reversed
the conviction on the grounds that the
State's rule "arbitrarily" deprived
Washington of his right under the Sixth
Amendment to present witnesses in his
more recent case of Rock v. Arkansas, 483
U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37
(1987), the Court held that a state could
not "arbitrarily or disproportionately"
prevent a defendant from testifying in her
defense by implementing a per se rule
prohibiting hypnotically enhanced testimony.
cases, taken together, stand for the
proposition that states may not impede a
defendant's right to put on a defense by
imposing mechanistic (Chambers ) or
arbitrary (Washington and Rock ) rules of
evidence. But they do not stand for the
proposition that a defendant must be allowed
to put on any evidence he chooses. As the
Court said in Chambers:
are more fundamental than that of an accused
to present witnesses in his own defense. In
the exercise of this right, the accused, as
is required of the State, must comply with
established rules of procedure and evidence
designed to assure both fairness and
reliability in the ascertainment of guilt
at 302, 93 S.Ct. at 1049 (citations omitted).
See also Crane v. Kentucky, 476 U.S. 683,
690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636
(1986) ("[W]e have never questioned the
power of States to exclude evidence through
the application of evidentiary rules that
themselves serve the interests of fairness
and reliability-even if the defendant would
prefer to see the evidence admitted.").5
LaGrand's confession was not excluded as a
result of rigid application of arbitrary or
mechanistic rules of admissibility. Rather,
the state courts determined, after analyzing
the proffer and the corroborating and
contradictory circumstances, that the
confession was not sufficiently reliable to
warrant its introduction. Thus, the refusal
to admit Karl's confession did not run afoul
of the Chambers-Washington-Rock prohibition
against arbitrary and mechanistic exclusion
of exculpatory evidence.
Chambers clearly prohibits states from
excluding exculpatory evidence by
application of rigid or arbitrary
exclusionary rules, it is not clear whether
the Chambers doctrine implies a requirement
of independent federal review of a state
court's determination of reliability. In Lee
v. McCaughtry, 933 F.2d 536, 538 (7th Cir.),
cert. denied, 502 U.S. 895, 112 S.Ct. 265,
116 L.Ed.2d 218 (1991), the Seventh Circuit
suggested that Chambers imposed no such
requirement: "Once a state has brought its
rules of evidence into line with
constitutional norms, there is little point
in case-by-case federal review of
the Lee court specifically declined to
answer the question whether federal review
is required, and instead duplicated the
state court's reliability inquiry and
concluded that the refusal to admit the
evidence was proper. Id. See also Turpin v.
Kassulke, 26 F.3d 1392, 1397 (6th Cir.1994)
(reversing district court's granting of
habeas petition after reviewing the
testimony excluded by the state trial court
and concluding that the evidence was indeed
"fundamentally untrustworthy"), cert. denied,
513 U.S. 1118, 115 S.Ct. 916, 130 L.Ed.2d
not answer the question here because, even
assuming that federal review is required,
the Arizona Supreme Court's conclusion-that
Karl's statement exculpating Walter was not
sufficiently reliable to come in under Rule
804(b)(3)-finds ample support in the record
and thus cannot be said to have had "substantial
and injurious effect or influence in
determining the jury's verdict" against
Walter LaGrand. Brecht v. Abrahamson, 507
U.S. 619, 623, 113 S.Ct. 1710, 1716, 123
L.Ed.2d 353 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776, 66 S.Ct.
1239, 1253, 90 L.Ed. 1557 (1946)).6
LaGrand's confession included two separate
statements: first, that he, Karl LaGrand,
stabbed Ken Hartsock, and second, that
Walter LaGrand did not stab anyone. Because
the "statements against penal interest"
exception to the hearsay rule is premised
upon the inherent reliability of statements
that tend to incriminate the declarant,
federal courts have concluded that a
statement that includes both incriminating
declarations and corollary declarations that,
taken alone, are not inculpatory of the
declarant, must be separated and only that
portion that is actually incriminating of
the declarant admitted under the exception.
See Williamson v. United States, 512 U.S.
594, 599-600, 114 S.Ct. 2431, 2434-35, 129
L.Ed.2d 476 (1994) (noting that judges in
federal cases must separate the
incriminatory portions of statements from
other portions for purposes of Rule
804(b)(3) because "[t]he fact that a person
is making a broadly self-inculpatory
confession does not make more credible the
confession's non-self-inculpatory parts");
Carson v. Peters, 42 F.3d 384, 386 (7th
Cir.1994) ("Portions of inculpatory
statements that pose no risk to the
declarants are not particularly reliable;
they are just garden variety hearsay.");
United States v. Porter, 881 F.2d 878,
882-83 (10th Cir.) (if a statement
exculpatory to the accused is severable from
the statement inculpatory to the declarant,
each statement must be separately analyzed
under Rule 804(b)(3)), cert. denied, 493
U.S. 944, 110 S.Ct. 348, 107 L.Ed.2d 336
(1989); United States v. Lilley, 581 F.2d
182, 188 (8th Cir.1978) ("To the extent that
a statement is not against the declarant's
interest, the guaranty of trustworthiness
does not exist and that portion of the
statement should be excluded.").
that Walter did not stab anyone, Karl was
not further incriminating himself. The
reliability that attends the inculpatory
part of his confession does not afford any
reliability to that part of the statement
that merely exculpates Walter. Accordingly,
it was not entitled to the benefit of Rule
804(b)(3)'s exception to the hearsay rule.
as noted by the Arizona Supreme Court,
direct evidence contradicted Karl's
statement that Walter was not involved in
the stabbing of Ken Hartsock: Mr. Hartsock
was stabbed 24 times and all wounds were
frontal; the wounds were consistent with two
different instruments having been used; Ms.
Lopez, the only eyewitness, testified that
Walter was standing in front of Mr. Hartsock
while Karl held him from behind; that at
least one person said twice, "Make sure he's
dead"; and that Walter stabbed her.
under federal case law, a judge ruling on
the reliability of Karl's statement could
consider that Walter's own testimony was not
corroborative, see Turpin, 26 F.3d at
1397-98, and that the exculpatory statements
of family members are not considered to be
highly reliable, United States v. Bobo, 994
F.2d 524, 528 (8th Cir.), cert. denied, 510
U.S. 891, 114 S.Ct. 250, 126 L.Ed.2d 203
of the foregoing, we conclude that even if
Chambers requires federal review of the
state courts' determination of reliability,
the Arizona courts' conclusion that the
statement was not sufficiently reliable to
be admitted was both "reasoned and
reasonable" and, as such, did not violate
Walter LaGrand's right to present a complete
defense. Carson, 42 F.3d at 387.
also argues that the standard of "clearly"
indicating a statement's trustworthiness is
"too onerous a burden." He argues that
Chambers stands for the proposition that the
courts can require only a "more reasonable,
minimal [burden]." He relies mainly on texts
and law review articles,7
being unable to point to cases which
specifically hold that Rule 804(b)(3), in
either state or federal garb, runs afoul of
a defendant's due process rights for that
reason. This argument fails because, given
the inherent unreliability of corollary
exculpatory statements, Rule 804(b)(3)'s
requirement that such statements be clearly
corroborated is entirely legitimate and
also makes a related argument concerning the
discriminatory effects of the corroboration
requirement of Rule 804(b)(3). This argument
springs from the Supreme Court's statement
in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.
2531, 65 L.Ed.2d 597 (1980), that the
Confrontation Clause does not bar
introduction of hearsay testimony which
bears sufficient indicia of reliability. The
Court said that reliability can be inferred
without further corroboration in cases where
the evidence falls within a "firmly rooted
hearsay exception." Id. at 66, 100 S.Ct. at
2539. Otherwise, a "showing of
particularized guarantees of trustworthiness
[would] be required." Id.
state can introduce a confession without
showing clear corroboration, the argument
goes, the defendant should be able to do the
same. This argument suffers from the same
flaw as the preceding one: exculpatory
statements such as Karl's do not come within
a "firmly rooted hearsay exception" as do
incriminating statements. See Carson v.
Peters, 42 F.3d at 386. In limiting
admissible evidence to that found to be
reliable, the rule-writers may legitimately
impose the burden of offering proof of
clearly corroborating circumstances on those
offering exculpatory hearsay statements.
also argues that the state courts' rejection
of Karl's confessions unconstitutionally
interfered with the jury's fact-finding
role. The state's contention that this claim
was not raised in the district court or in
state court has merit. In the district court,
the argument that the trial court's ruling
invaded the province of the jury was simply
a subset of the contention that Chambers
required the trial court to admit the
evidence. There was not, as there is here, a
stand-alone argument of interference with
the jury's function. A decision on this
issue is subsumed in the ruling on the
"Chambers doctrine" and need not be
conclude that there was no constitutional
error in the Arizona courts' decision to
exclude under Rule 804(b)(3) Karl LaGrand's
statement that Walter was not involved in
the stabbing of Ken Hartsock.
LaGrand has been represented by Bruce Burke,
a Tucson lawyer, throughout all proceedings
to date. Prior to appointing him as counsel
in Walter's federal habeas proceeding, the
district court required Mr. Burke to discuss
possible claims of ineffective assistance of
counsel with Walter and then to file a
status report with the court.
status report, Mr. Burke recounted a meeting
he had had with Walter in which he had
explained the issue of ineffective
assistance of counsel, "and [had told him]
that such a claim might provide him with an
avenue for relief from the death penalty."
Mr. Burke also informed Walter that he knew
of no instances in which his own assistance
had been ineffective.
told Walter that the court "would appoint an
additional attorney, or a new attorney, to
examine my performance" if Walter desired.
Walter told Mr. Burke that "he did not want
me to take steps which might require me to
withdraw as his attorney of record and he
did not wish me to seek appointment of a new
attorney to consider the issue."
Burke was appointed in federal court, he
learned that Karl's counsel was going to
present evidence to the effect that his
trial counsel had been ineffective at the
sentencing phase of the case. Because Mr.
Burke believed that this drew into question
his own effectiveness at sentencing, he
moved to withdraw as Walter's counsel.
district court denied the motion on the
grounds that Walter had been given an
opportunity to change counsel in order to
present an ineffective assistance of counsel
claim but had waived that right. The court
also held that no prejudice had been shown
since the claimed failure did not constitute
ineffective assistance of counsel.
the district court's order for abuse of
discretion. United States v. Baker, 10 F.3d
1374 (9th Cir.1993), cert. denied, 513 U.S.
934, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994).
Walter's waiver was not of specific
instances of ineffectiveness, but of the
employment of new counsel to potentially
pursue such claims.
In this instance, Walter's
claim that the waiver was not effective
because he didn't know the facts
constituting the claim has no merit. When
Walter waived the offer of new counsel, he
was waiving the benefits of new
representation, among which would
potentially have been the presentation of
this sort of new claim. See United States v.
Lowry, 971 F.2d 55 (7th Cir.1992). Since the
claim now asserted was well within the
waiver, the district court did not abuse its
discretion in denying the motion.
foregoing reasons, we affirm the district
court's denial of Walter's petition.
A claim of
ineffective assistance of counsel presents a
mixed question of law and fact which we
review de novo. Sanders v. Ratelle, 21 F.3d
1446, 1451 (9th Cir.1994) (citing Strickland
v. Washington, 466 U.S. 668, 698, 104 S.Ct.
2052, 2069, 80 L.Ed.2d 674 (1984)).
Strickland, a petitioner seeking habeas
relief based on the ineffective assistance
of counsel must show: (1) that the counsel's
performance falls "below an objective
standard of reasonableness," 466 U.S. at
688, 104 S.Ct. at 2064; and (2) that there
is a reasonable probability that, but for
counsel's errors, the result of the
proceeding would have been different, id. at
694, 104 S.Ct. at 2068.
claims that the district court erred on his
Strickland ineffectiveness claim: (1) by
limiting the scope of the evidentiary
hearing; and (2) by finding that Karl's
trial counsel's performance did not fall
below an objective standard of
capital case, a petitioner is entitled to an
evidentiary hearing where there has been no
state court evidentiary hearing and the
petitioner raises a "colorable" claim of
ineffective assistance. Smith v. McCormick,
914 F.2d 1153, 1170 (9th Cir.1990). The
scope of an evidentiary hearing on a motion
under 28 U.S.C. § 2254 is committed to the
discretion of the district court. United
States v. Layton, 855 F.2d 1388, 1421 (9th
Cir.1988), cert. denied, 489 U.S. 1046, 109
S.Ct. 1178, 103 L.Ed.2d 244 (1989).
present case, the district court held an
evidentiary hearing on Karl's ineffective
assistance of counsel claim for the limited
purpose of determining whether Karl could
establish the first prong of the Strickland
test. Karl was therefore required to prove
that his counsel's performance was deficient
before the court would entertain evidence
argues that the district court's limitation
on the scope of the evidentiary hearing was
erroneous for two reasons. First, Karl
claims that the two prongs of the Strickland
test are interconnected and that they must
be considered together.
has ever held that both prongs of the
Strickland test must be examined
simultaneously. To the contrary, the Supreme
Court has held that a court is not required
to address both components of the Strickland
test in deciding an ineffective assistance
of counsel claim "if the defendant makes an
insufficient showing on one." Strickland,
466 U.S. at 697, 104 S.Ct. at 2069.
court need not determine whether defendant
was prejudiced by counsel's alleged
deficiencies if it determines that counsel's
performance was not deficient. See id.;
Cacoperdo v. Demosthenes, 37 F.3d 504, 508
(9th Cir.1994) (defendant failed to show
lack of thorough investigation of law and
facts and therefore failed to meet his
burden on the first prong of the Strickland
test), cert. denied, 514 U.S. 1026, 115 S.Ct.
1378, 131 L.Ed.2d 232 (1995).
Karl claims that the district court erred in
not allowing him to present expert medical
and legal testimony regarding his trial
counsel's performance. Karl alleges that he
needed to present expert testimony to show
what evidence could and should have been
presented by his trial counsel. This claim
district court allowed Karl to present the
testimony of five attorneys regarding the
standard of care used by Karl's attorney.
These attorneys were all familiar with the
case. Karl has failed to cite any authority,
and we have found none, that supports his
contention that only outside expert
testimony can provide a basis on which to
measure counsel's performance.
Furthermore, the majority of the proffered
expert testimony rejected by the court went
to the second prong of the Strickland test,
which was not the subject of the hearing.
Thus, the district court's refusal to allow
the expert testimony based on its finding
that the testimony would not be relevant to
the limited scope of the evidentiary hearing
See Wade v. Calderon, 29 F.3d 1312, 1326-27
(9th Cir.1994) (upholding district court's
limitation of defendant's expert evidence
where the limitation was "reasonably
designed to restrict the issue to competence
of counsel, on the basis of what was
reasonably known by counsel at the time of
trial"), cert. denied, 513 U.S. 1120, 115
S.Ct. 923, 130 L.Ed.2d 802 (1995).
defendant is required to prove both prongs
of the Strickland test before relief can be
granted, the district court did not abuse
its discretion in limiting the scope of the
evidentiary hearing to determine whether
defendant met the first prong of the
Strickland test. See Layton, 855 F.2d at
Furthermore, the district court's limitation
of Karl's expert evidence was reasonably
designed to restrict the issue of the
hearing to the first prong of the Strickland
test. Therefore, the district court did not
abuse its discretion in refusing the expert
medical and legal testimony proffered by
Karl. See Wade, 29 F.3d at 1326-27.
The United States
Constitution guarantees that criminal
defendants "shall enjoy the right to have
the assistance of counsel for [their]
defense." U.S. Const. amend VI. This
constitutional right to counsel means that
all defendants have the right to effective
counsel. McMann v. Richardson, 397 U.S. 759,
771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25
L.Ed.2d 763 (1970).
establish that he was deprived of his right
to the effective assistance of counsel, a
defendant must show that his counsel's
performance falls "below an objective
standard of reasonableness." Strickland, 466
U.S. at 688, 104 S.Ct. at 2064. This inquiry
must focus on "whether counsel's assistance
was reasonable considering all the
circumstances." Id. at 688, 104 S.Ct. at
Prevailing norms of
practice ... are guides to determining what
is reasonable, but they are only guides. No
particular set of detailed rules for
counsel's conduct can satisfactorily take
account of the variety of circumstances
faced by defense counsel or the range of
legitimate decisions regarding how best to
represent a criminal defendant.
688-89, 104 S.Ct. at 2065.
reviewing court's scrutiny "of counsel's
performance must be highly deferential." Id.
There is a strong presumption that "counsel's
conduct falls within the wide range of
reasonable professional assistance; that is,
the defendant must overcome the presumption
that, under the circumstances, the
challenged action 'might be considered sound
trial strategy.' " Id.
deciding whether counsel's performance was
deficient, we must judge the challenged
conduct based on the facts of the particular
case, "viewed as of the time of counsel's
conduct." Id. at 690, 104 S.Ct. at 2066. We
must determine whether, "in light of all the
circumstances, the identified acts or
omissions were outside the wide range of
professionally competent assistance,"
keeping in mind that "counsel is strongly
presumed to have rendered adequate
assistance and made all significant
decisions in the exercise of reasonable
professional judgment." Id. "[S]trategic
choices made after thorough investigation of
law and facts relevant to plausible options
are virtually unchallengeable." Id.
analyzing counsel's performance, "[w]e will
neither second-guess counsel's decisions,
nor apply the fabled twenty-twenty vision of
hindsight." Campbell v. Wood, 18 F.3d 662,
673 (9th Cir.), cert. denied, 511 U.S. 1119,
114 S.Ct. 2125, 128 L.Ed.2d 682 (1994). "A
fair assessment of attorney performance
requires that every effort be made to
eliminate the distorting effects of
hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to
evaluate the conduct from counsel's
perspective at the time." Strickland, 466
U.S. at 689, 104 S.Ct. at 2065.
claims that his counsel's performance was
deficient in numerous ways. We will discuss
each claim of ineffectiveness individually.a.
claims that his background and his
statements to the police indicate that he
murdered Hartsock in a moment of rage after
being kicked. He argues that this moment of
rage and his "notorious lack of control"
showed that he committed this crime on
impulse and did not premeditate the crime.
Thus, he claims that his attorney acted
deficiently by failing to thoroughly
investigate or pursue a defense of
impulsivity on his behalf. The district
court held that Karl's counsel was not
ineffective on this issue, see LaGrand v.
Lewis, 883 F.Supp. 451, 457-58 (D.Ariz.1995),
and we agree.
v. Christensen, 129 Ariz. 32, 35-36, 628
P.2d 580, 583-84 (1981), the Arizona Supreme
Court recognized that impulsivity could be a
viable defense for premeditated murder
because it tends to negate the mental
element of premeditation. The defendant in
Christensen was charged with having
committed the premeditated murder of his
wife. There was no evidence supporting a
claim of felony murder. Therefore, the
defendant could be found guilty of first-degree
murder only if he was found to have
premeditated the murder.
by the district court, Karl's counsel was
clearly aware of the Christensen impulsivity
defense. Prior to his representation of
Karl, counsel represented a defendant in a
case in which the impulsivity defense and
Christensen were discussed. See State v.
Ramos, 133 Ariz. 12, 648 P.2d 127 (App.1981),
vacated, 133 Ariz. 4, 648 P.2d 119 (1982).
Furthermore, Karl's counsel did not ignore
evidence of defendant's impulsivity.
Impulsivity evidence was presented during
trial through the testimony of Walter and
argued by Karl's attorney during closing
argument. However, counsel apparently made a
decision to not pursue the impulsivity
defense more fully.9
decision is supported by the record, which
reveals the futility of an impulsivity
defense. As the district court stated:
Prior to Ken Hartsock
being stabbed, Walter LaGrand had stated
that he was going to kill the bank manager
if the bank manager was lying about being
unable to open the vault. Before Dawn Lopez
was permitted to leave the bank to turn off
her headlights, she was told that if she did
not return, Ken Hartsock would be killed.
The bank manager was
stabbed twenty-four times and Dawn Lopez was
stabbed at least seven times. After Ken
Hartsock was repeatedly stabbed, either
[Karl] or Walter LaGrand was overheard to
say: "Just make sure he's dead." Ms. Lopez
testified that she heard both [Karl] and
Walter LaGrand make such a statement. This
evidence belies a claim of impulsivity.
883 F.Supp. at 458.
present counsel have spent much time and
effort in gathering further evidence and
opinion to support the impulsivity defense.
However, fleshing it out further makes it no
better. Karl's presentation does not
overcome the presumption of soundness under
Strickland. Impulsivity was absolutely no
defense to the felony-murder charge, which
was the State's principal claim.
premeditated murder remained in the case
only because the trial court rejected the
State's objection to the defendants'
requested instruction on premeditated murder.
In addition, pursuit of the impulsivity
defense, like the insanity defense, would
have necessarily brought Karl's prior record
into the case. Counsel's performance was not
deficient. See Strickland, 466 U.S. at 691,
104 S.Ct. at 2066-67.
claims that his attorney rendered
ineffective assistance by failing to pursue
an insanity defense. We reject this claim.
counsel researched the possibility of an
insanity defense at length. Karl was
examined by two doctors, psychologist Dr.
Lewis Hertz and psychiatrist Dr. Edward
Meshorer. Neither doctor's reports suggested
an insanity defense was available to Karl.
Dr. Hertz reported that Karl "knew right
from wrong," negating use of the M'Naughten
test for insanity. Dr. Meshorer's report,
while not addressing the M'Naughten test,
gave no indication that an insanity defense
would be a viable option for Karl. As the
Arizona Supreme Court pointed out: "[N]o
evidence of M'Naughten insanity existed."
State v. LaGrand, 152 Ariz. 483, 485, 733
P.2d 1066, 1068 (1987).
Furthermore, if Karl's counsel had pursued
an insanity defense, Arizona procedure would
have opened up Karl's juvenile record to
inspection and exposed his past to scrutiny.
See State v. Rodriguez, 126 Ariz. 28, 31,
612 P.2d 484, 487 (1980). As the district
counsel opened the door to [Karl's] past,
the jury would have learned of a lengthy and
violent criminal history. [Karl's]
presentence reports indicate that less than
three months before the events of this case
occurred, on two separate occasions [Karl]
committed armed robberies and kidnappings at
Tucson grocery stores, and had prepared to
commit another armed robbery at a third
grocery store. When the murder of Ken
Hartsock occurred, [Karl] had been released
on bail while awaiting trial for armed
robbery and kidnapping.
juvenile, [Karl] was adjudicated delinquent
for multiple burglaries, armed robbery and
883 F.Supp. at 458.
there was a lack of evidence supporting an
insanity defense, and because pursuing an
insanity defense would have made Karl's
lengthy and violent criminal history
admissible, counsel's decision not to pursue
the insanity defense was reasonable and did
not constitute ineffective assistance.
c. Suppression of
being arrested, Karl made two confessions to
the police wherein he admitted committing
the murder and stated that it was done in a
moment of rage. Karl's previous attorney
succeeded in having the confessions
suppressed on the grounds that the
confessions were involuntary and that Karl
had not received his Miranda warnings.
Karl's trial counsel became the lead counsel,
he decided that the confessions would be
useful at sentencing. The confessions
contained statements that made the murder
seem less heinous than the eyewitness
testimony of Ms. Lopez. If Karl was
convicted of first-degree murder, counsel
wanted to use the confessions at sentencing
in order to mitigate the sentence. Trial
counsel sought reversal of the trial court's
decision of involuntariness. The trial court
agreed, and although the statements were
inadmissible at trial due to the lack of a
Miranda warning, the statements became
admissible at sentencing.
claims that his counsel acted ineffectively
because counsel changed strategies on
whether or not the confessions should be
suppressed. We reject this claim.
counsel's decision to seek suppression of
the confessions was reasonable. The
confessions, while evidencing impulsivity,
also contained statements that were highly
incriminating because they tended to place
the entire blame for Hartsock's death on
Karl. Previous counsel believed that Karl
was confessing to something that he did not
do. Eyewitness testimony contradicted what
Karl had confessed to. Thus, previous
counsel believed that Karl's confessions
would be harmful to the case and therefore
made a decision to seek suppression, an
effort in which trial counsel participated.
counsel's decision to seek retraction of the
trial court's ruling to the extent that the
confessions were involuntary was also
reasonable. This enabled counsel to exclude
the confessions when they would have been
the most damaging--during the guilt finding
phase--and utilize them at a time when they
could prove useful--during sentencing.
Karl claims that the use of the confessions
at sentencing was only useful to Walter and
that trial counsel's decision to have the
confessions admissible during sentencing was
therefore ineffective. We disagree. The
confessions revealed a less egregious crime
than that presented by the eyewitness
testimony of Ms. Lopez. The sentencing was
to be done by the trial judge, who would
have already heard Ms. Lopez's testimony.
counsel introduced the confessions at the
sentencing phase, with the possibility that
Karl's version of the events would offset
the testimony of Ms. Lopez. In the absence
of the confessions, the sentencer would have
no record evidence of Karl's conduct except
that of Ms. Lopez. This use of Karl's
confessions during sentencing was a sound
and reasonable strategic decision by Karl's
trial counsel and, as such, does not
constitute ineffective assistance.
d. Interview and
Examination of Witnesses
argues that his counsel acted ineffectively
by failing to interview and examine all of
the witnesses at trial. We are not persuaded.
the time that trial counsel was appointed to
represent Karl, all of the witnesses had
been interviewed. Trial counsel reviewed the
transcripts of these interviews. An
investigator had also been working on the
case prior to trial counsel's appointment,
and trial counsel had access to, and
reviewed, this investigator's reports. Trial
counsel put in the equivalent of twenty-seven
eight-hour days in trial preparation. He
personally interviewed the only eyewitness,
Ms. Lopez. The fact that trial counsel did
not personally interview each witness does
not constitute ineffective assistance. See
Eggleston v. United States, 798 F.2d 374,
376 (9th Cir.1986) (trial counsel does not
need to interview a witness if the witness's
account is fairly known to counsel).
Karl's trial counsel was very quiet. Of the
eighteen witnesses called by the Government,
trial counsel cross-examined only two. One
of the witnesses cross-examined by trial
counsel was Ms. Lopez.
Arizona Supreme Court held:
trial counsel here kept an exceedingly low
profile, we cannot say that his performance
was so deficient as to compromise the
adversarial nature of the trial.... Failure
to cross-examine most witnesses was not
deficient because co-defendant's counsel did
an excellent job of cross-examining them.
Counsel did cross-examine Dawn Lopez, and
establish that Karl was kicked. While we
normally expect to see more vigorous
representation from counsel, particularly in
a death penalty case, we cannot say that
counsel's trial performance was ineffective.
152 Ariz. at 486, 733 P.2d at 1069. We agree.
court's sequence of examination of witnesses
resulted in Walter's counsel cross-examining
each of the State's witnesses prior to
Karl's trial counsel having that opportunity.
All parties agree that Walter's counsel did
an exceptional job cross-examining the
witnesses. Thus, there was not much left to
cross-examine when Karl's counsel was
allowed to address the witness. If Karl's
counsel repeated the questions asked by
Walter's counsel, any negative answers would
simply have been magnified in the jury's
mind. Karl's counsel made a reasonable
decision not to add to the questioning of
most of the witnesses.
strategies of respective defense counsel at
trial were not nearly as antagonistic as
Karl now urges. The evidence against Karl
and Walter overlapped. Questions asked by
Walter's counsel often inured to the benefit
of Karl. In fact, both brothers had the same
interests as against each witness except Ms.
counsel presented expert testimony regarding
flaws associated with eyewitness testimony
and extensively cross-examined Ms. Lopez
regarding prior inconsistent statements,
both of which benefited Karl. In addition,
Karl's trial counsel cross-examined Ms.
Lopez and attempted to elicit responses from
her that would have aided Karl in
establishing that his actions were the
result of an impulsive reaction rather than
Karl's trial counsel's performance was not
perfect, it was not so unreasonable as to
overcome the presumption that, under the
circumstances, counsel's conduct was within
the wide range of competent professional
assistance. Karl's trial counsel's
performance was therefore not ineffective.
See Strickland, 466 U.S. at 687-88, 104 S.Ct.
claims that the totality of his counsel's
representation was not effective, pointing
out that counsel did not give an opening
statement, only cross-examined two witnesses,
and was inexperienced. In this sense, Karl
asserts, his attorney acted as a neutral
observer rather than a zealous advocate. But
trial counsel was not the "potted plant"
that Karl now paints him as.
counsel filed several pretrial motions,
which were joined by Walter's counsel, as
well as joining in motions filed by Walter's
counsel. He persisted in pursuing the
psychological test when the first results
were inconclusive and finally obtained a
usable result when the questions were read
to Karl. He examined Ms. Lopez during the
hearing on the identification of the
defendants, as well as joining in motions
filed by Walter's counsel. Trial counsel
also questioned well over half of the
available prospective jurors during the
individual voir dire.
counsel's conduct during trial was not so
limited as to be ineffective. First, the
failure to give an opening statement did not
render trial counsel's assistance
ineffective. Counsel did not waive opening
statement, but rather chose to reserve it
and wait until he heard all of the state's
evidence before making an opening statement.
After the closing of the state's case,
counsel chose not to put on any witnesses.
Trial counsel thus lost the opportunity to
give an opening statement. This was a
reasonable strategic decision by counsel and
did not constitute ineffective assistance.
See United States v. Rodriguez-Ramirez, 777
F.2d 454, 458 (9th Cir.1985) (the timing of
opening statement, including the decision on
whether or not to make one, is a trial
tactic and does not constitute a basis for a
claim of ineffective assistance).
argues that trial counsel's inexperience
rendered his assistance ineffective. In
considering a claim of ineffective
assistance of counsel, it is not the
experience of the attorney that is evaluated,
but rather, his performance.
as stated previously, trial counsel's
decision to cross-examine only two of the
State's witnesses did not constitute
ineffective assistance. Most of the
testimony applied to both defendants. The
witnesses did not, for the most part,
distinguish between Walter and Karl. Cross-examination
simply because it was permissible would have
served no purpose. The one conspicuous
exception was Dawn Lopez, and trial counsel
did cross-examine her.
Karl's counsel was not very active during
the trial, there is nothing to suggest that
he was ineffective. Walter's counsel
presented numerous arguments that benefitted
both parties equally. Karl's counsel made a
reasonable decision to "lay low" and allow
Walter's arguments to represent them both.
There was nothing to be gained by repeating
the same arguments advanced by another
attorney. Although Karl's counsel chose not
to argue every point, his representation did
not fall below the reasonably competent
performance guaranteed by the Constitution.
See Atkins v. Singletary, 965 F.2d 952, 960
(11th Cir.1992) (The Constitution "requires
a good deal less than maximum
performance."), cert. denied, 515 U.S. 1165,
115 S.Ct. 2624, 132 L.Ed.2d 865 (1995).
claims that his counsel failed to
competently investigate, prepare and present
evidence at the mitigation hearing. We
reject this claim.
shows that Karl's counsel presented numerous
mitigating factors at the sentencing hearing.
Counsel called a psychiatrist to testify
about Karl's impulsiveness and introduced a
report by a clinical psychologist. Counsel
introduced Karl's confessions into evidence
because he thought they presented a less
egregious account of the events in the bank
than the eyewitness account and because it
bolstered Karl's impulsivity defense.
Furthermore, Walter's counsel introduced
extensive mitigation evidence which applied
equally to both Walter and Karl. Walter's
counsel called Walter and Karl's sister to
present mitigation evidence and her
testimony about the nature of the LaGrand
family applied equally to Karl and Walter.
say that counsel's performance fell outside
the wide range of reasonable professional
assistance. Counsel's assistance was
therefore not ineffective. See Paradis v.
Arave, 20 F.3d 950, 959 (9th Cir.1994) (counsel
was not ineffective despite defendant's
claim that counsel called only one
mitigation witness and failed to develop
information regarding defendant's oppressive
upbringing and the fact that he was easily
angered), cert. denied, 513 U.S. 1117, 115
S.Ct. 915, 130 L.Ed.2d 796 (1995).
present counsel submitted an affidavit of
trial counsel in support of the claim that
trial counsel had been ineffective. The
affidavit was apparently prepared by present
counsel. In response, the Arizona Attorney
General's office sent a copy of the
affidavit to the Arizona State Bar, pursuant
to obligations under the State Bar's Ethical
Rules, suggesting that Mr. Gerson, Karl's
trial counsel, had admitted a violation of
the Ethical Rules requiring competent
argues that the State is estopped to
continue to contend that trial counsel
provided effective representation to Karl.
The basic argument is that the State had
asserted that trial counsel was incompetent
claim has no merit. The State has contended
throughout all proceedings that trial
counsel met the Strickland standard. Its
letter to the bar did not say that trial
counsel was incompetent and ineffective, but
that his admissions demonstrated a violation
of the Ethical Rules. If trial counsel, in
falling on his sword, had admitted he was
ineffective, the Attorney General's office
believed it had a professional obligation
under the Ethical Rules to bring it to the
bar's attention. This is not sufficient to
estop the State from continuing to contend,
as it has throughout, that Karl received
before trial, the trial court considered and
rejected, after inquiry of Karl, his "Declaration
of Conflict Between Attorney and Client"
filed some forty-five days prior. The
declaration said that trial counsel had
failed to come to the prison to visit Karl
in order to discuss the defense which the
defendant wished to use.
reviewing the rejection of defendant's
request for new counsel, we look at three
factors: the timeliness of the request; the
adequacy of the trial court's inquiry; and "whether
the conflict between the defendant and his
attorney was so great that it resulted in a
total lack of communication between the
defendant and his attorney." Bland v.
California Dep't of Corrections, 20 F.3d
1469, 1475 (9th Cir.) (citation omitted),
cert. denied, 513 U.S. 947, 115 S.Ct. 357,
130 L.Ed.2d 311 (1994).
Karl's request was filed forty-five days
before trial, so it was timely. The trial
court's inquiry went to the relationship
between Karl and his trial counsel, not to
the legal competency of trial counsel. See
id. at 1476. The inquiry was adequate under
the circumstances and did not reveal a total
lack of communication between Karl and trial
complained of inadequate time in meetings
and of gloomy predictions by trial counsel.
But the record discloses no total failure of
communication. In fact, just moments before
considering Karl's declaration, the trial
court inquired about the pending motion for
a mental condition examination. Trial
counsel said that a decision had been made
to withdraw the motion, stating both that "we've"
decided and "I've" decided to withdraw the
motion. The following exchange took place:
MR. GERSON: I did some
THE COURT: Is that what
your client wants?
MR. GERSON: I've
discussed it with him. He's not indicated
THE COURT: Well, unless
he speaks up right now, I'm going to assume
that you're speaking for him.
DEFENDANT KARL LaGRAND:
Yes, he's speaking for me.
v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75
L.Ed.2d 610 (1983), the Supreme Court
considered a similar claim. The assistant
public defender assigned to the case was
replaced just before trial because of health
problems. Slappy complained that the new
public defender did not have enough time to
prepare, that his new lawyer had not talked
to him much, and that the new lawyer told
him he had no defense to the charges. In
holding that the trial court properly denied
Slappy's claims, the Supreme Court
specifically rejected the argument that the
Sixth Amendment guaranteed a defendant a "meaningful
relationship" with his lawyer. Id. at 13-14,
103 S.Ct. at 1617-18.
argues that he was entitled to the
appointment of a new lawyer to represent him
in his request for a change in trial counsel.
Karl cites no authority for this novel
extension of the right to counsel, and we
have found none. Karl had counsel at the
time of his request who did not oppose the
to replace a criminal defendant's trial
counsel admittedly creates a delicate
situation for the lawyer, the defendant and
the court. But bringing in a new lawyer is
not required to protect the defendant's
rights. The obligation of the trial court to
inquire is by now well known, and an
appropriate inquiry made by the trial judge
will disclose whether the relationship has
deteriorated to the point that communication
has been destroyed. The defendant's self-interest
and his lawyer's continuing professional
obligation are sufficient to enable the
trial court to make the necessary
judgment of the district court denying the
petitions for writ of habeas corpus is
Circuit Judge, dissenting:
because I believe that the LaGrands'
challenge to Arizona's lethal gas statute is
ripe for review.
LaGrands are condemned prisoners in Arizona.
Under Arizona's death penalty statute, the
LaGrands will be executed by lethal
injection unless they choose lethal gas.
Ariz.Rev.Stat. § 13-704(B). In their
petitions for habeas corpus, the LaGrands
argue that execution by lethal gas is cruel
and unusual punishment prohibited by the
the LaGrands have not yet chosen lethal gas
as the method of execution, the majority
concludes that the LaGrands's challenge to
the lethal gas statute "is not ripe and
cannot be considered." In Campbell v. Wood,
18 F.3d 662 (9th Cir.1994) (en banc),
however, we considered--and rejected--the
mirror image of this theory: namely, that an
Eighth Amendment challenge to a "choice"
statute is nonjusticiable because a prisoner
can choose a means of execution that renders
the controversy moot. We held, in
circumstances almost identical to those
involved here, that a prisoner's challenge
to Washington's death penalty statute was
justiciable. Id. at 681. I can discern no
principled distinction between the present
case and Campbell to support their
the majority's opinion conflicts with
established Supreme Court pronouncements on
ripeness. In Thomas v. Union Carbide
Agricultural Products, 473 U.S. 568, 581,
105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985),
the Supreme Court determined that an issue
is ripe for adjudication if it is "purely
legal, and will not be clarified by further
factual development." The LaGrands's claim
is a purely legal one, and postponing a
determination on the merits will not change
the legal basis for decision.
I. JUSTICIABILITY OF A
PRISONER'S CHALLENGE TO A DEATH PENALTY
Campbell, Charles Campbell, a condemned
prisoner, challenged Washington's death
penalty statute. Campbell, 18 F.3d 662. The
statute provided for death by hanging unless
the defendant chose lethal injection. Id. at
680 (citing Wash. Rev.Code 10.95.180(1)).
Campbell argued that death by hanging was
cruel and unusual punishment and that the
statute therefore violated the Eighth
Amendment. The State of Washington argued
that Campbell's claim was nonjusticiable
because he could render the controversy moot
by choosing lethal injection instead of
hanging. Id. at 681.
An en banc
panel of this court unanimously rejected the
State's argument. We stated that the "State's
focus on Campbell's ability to choose lethal
injection is misplaced" because the
government may not "cloak unconstitutional
punishments in the mantle of 'choice.' " Id.
illustrated this principle with several of
our earlier decisions. Id. (discussing Dear
Wing Jung v. United States, 312 F.2d 73 (9th
Cir.1962); United States v. Terrigno, 838
F.2d 371 (9th Cir.1988); and United States
v. Consuelo-Gonzalez, 521 F.2d 259 (9th
Cir.1975)). In Dear Wing Jung, for instance,
we noted that departure from the United
States as a condition of suspending a
sentence was either cruel and unusual
punishment or a denial of due process.
that the condition did not escape review on
the ground that the defendant could choose
the constitutional punishment of a prison
term: "It is not enough for the government
to answer that such condition merely gave
the defendant a 'choice.' For instance, if
the condition were that the defendant must
join a certain church, that would be an
unconstitutional condition upon the sentence."
Dear Wing Jung, 312 F.2d at 75-76.
in Terrigno and Consuelo-Gonzalez, we
considered the constitutionality of
probation conditions, although in those
cases as well, the defendant could have
chosen to remain incarcerated. Terrigno, 838
F.2d at 374 (considering whether probation
condition violated defendant's First
Amendment rights); Consuelo-Gonzalez, 521
F.2d at 264 (considering whether probation
condition violated defendant's Fourth
Amendment rights). In light of these
decisions, we held that Cambell's challenge
to hanging was justiciable.
I fail to
understand why Campbell's mere indication
that he would elect death by hanging makes
his claim more justiciable than the
LaGrands's claim. Campbell's indication that
he would choose death by hanging was not
binding and not final. Indeed, Campbell's "choice"
was not even specifically articulated-he
said that he would be silent, which would
result, by default, in death by hanging.
When viewed in terms of legally binding,
final decisions, the posture of the
LaGrands's challenge is identical to that of
Furthermore, the cases relied on in Campbell
do not make the distinction that the
majority makes. In fact, it appears that the
prisoners in those cases-like the prisoners
here-had not chosen the unconstitutional
method of execution. See Dear Wing Jung, 312
F.2d at 73 (parenthetical); Terrigno, 838
F.2d at 374 (parenthetical); Consuelo-Gonzalez,
521 F.2d at 264 (parenthetical). Nor,
apparently, did they "consistently maintain"
that they would remain silent and elect, by
default, the challenged method of death.
Nevertheless, their claims were justiciable.
unreasonable to say that we will not decide
whether the LaGrands claim is
unconstitutional until the LaGrands choose
the very method that they are challenging as
cruel and unusual. Such a legal system would
subject individuals to actual cruel or
unusual punishment under an unconstitutional
law until someone chooses lethal gas in
order to assert a legal challenge against it.
majority correctly chose the two-part test
of Abbott Laboratories v. Gardner, 387 U.S.
136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) to
determine the ripeness of the LaGrands's
claim. This test requires the court to "evaluate
both the fitness of the issues for judicial
decision and the hardship to the parties of
withholding court consideration." Id. at
149, 87 S.Ct. at 1515. The majority is
mistaken, however, in its conclusion that
this case is not ripe under Abbott
majority insists on relying on the doctrine
of ripeness as a justification for its delay
in addressing the constitutionality of the
Arizona death penalty statute. The
majority's decision is inconsistent with the
rationale of Abbott Laboratories and Thomas.
In Abbott Laboratories, the Court found that
where "the issue tendered is a purely legal
one," the first prong of the ripeness test
is satisfied. Id. As was true in Abbott
Laboratories, the LaGrands's challenge
presents a purely legal issue: Is Arizona's
death penalty statute constitutional? In
Thomas, the Court held that an issue is ripe
if the issue "will not be clarified by
further factual development." Thomas v.
Union Carbide Agric. Prods., 473 U.S. 568,
581, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409
(1985). Because the issue in this case "will
not be clarified by further factual
development," the LaGrands's challenge is
purely legal and is therefore fit for
interest is served by delaying the
resolution of the LaGrands purely legal
claim. Whether or not the LaGrands
ultimately chose lethal gas as the method of
their execution will have absolutely no
effect on the constitutional question that
the LaGrands have raised.
Withholding court consideration will cause
hardship to all parties involved--including,
incidently, this court.
should the LaGrands do after reading the
majority's opinion? The lesson appears to be
that if the LaGrands, like Campbell, "consistently
maintain" that they will elect an arguably
unconstitutional method of execution, then
the LaGrands can challenge that method.
Therefore, the obvious course for the
LaGrands is to begin to "consistently
maintain" that they will choose gas. (They
need not actually choose gas.) The
LaGrands's claim will then be ripe and will
someday return to our court.
review of the LaGrands's Eighth Amendment
challenge will cause hardship to the
LaGrands as well. Instead of receiving this
court's deliberate and thoughtful
consideration of their challenge, the
LaGrands will be forced to present their
claim in a "last-minute" habeas petition.
Arizona gain anything from the majority's
reluctance to address the issue. In fact,
the majority's decision frustrates Arizona's
alleged interest in executing the LaGrands
without undue delay by providing another
ground for a future "last-minute" appeal.
note the prudential concern in addressing
the LaGrands's claims now. The majority
opinion conflicts with the federal policy to
resolve habeas petitions as early as
possible. The majority's decision defeats
this policy by postponing a decision on the
merits until after the LaGrands choose to be
executed by lethal gas. Do we want to see
the LaGrands's challenge to lethal gas
presented by a flurry of faxes as the hour
of execution looms? Do we wish to make an
important decision in harried circumstances?
majority's decision, Arizona has
successfully accomplished exactly what we
feared in Campbell: it has cloaked an
unconstitutional punishment in the mantle of
"choice." Campbell, 18 F.3d at 680. Because
the majority has offered no satisfactory
explanation why Cambell's claim was
justiciable while the LaGrands's claim is
not, I respectfully dissent.