Argument recap: Court doubts that failure to suppress confession is prejudicial in felony murder case
At yesterdayâ€™s oral argument in Premo v. Moore, the Justices (with Justice Kagan recused) seemed ready to accept that respondent Randy Moore had not been prejudiced by his counselâ€™s failure to suppress his unconstitutionally obtained confession.Â (My preview of the case is here.)
Arguing for the State of Oregon, Attorney General John Kroger began by asserting that the Ninth Circuit erred when it held that Arizona v. Fulminante provided the clearly established federal law governing a failure to suppress a confession obtained through unconstitutional means.Â When asked by Justice Ginsburg, however, whether Fulminante was relevant â€œfor the proposition that a defendantâ€™s own confession carries heavy weight,â€ Kroger conceded that it was, at least for that purpose.
Justice Sotomayor then asked whether Kroger was arguing that, absent other incriminating evidence, â€œno defendant should plead guilty if [he has given] a suppressible confession.â€Â After responding that he was, Kroger went on to describe the charges to which Moore would have been subject had he not entered a plea of no contest.
Justice Ginsburg asked about the test suggested by Judge Marsha Berzon in her concurring opinion, which the Justice characterized as including the proposition that â€œif you get rid of the confession, then you have a better chance of getting a good deal in the plea bargain.â€Â Kroger replied that, even if the Court were to recognize that principle now, it would not have been clearly established federal law under AEDPA when the Ninth Circuit granted Mooreâ€™s petition; moreover, such a standard â€œwould require an immense amount of speculation.â€Â In Justice Breyerâ€™s view, however, such speculation is inevitable: â€œI mean, imagine a case where itâ€™s clear there was a malpractice or an inadequate assistance, and it happened a long time ago and now you have to decide, well, was it prejudicial or not?â€
Justice Sotomayor asked Kroger to assume that there had been no confession at all; he answered that a plea bargain would still have been a rational response.Â Justice Breyer asked about the maximum sentence that Moore could have received if the case has gone to a grand jury; Kroger replied that Moore could have been charged with aggravated murder, a capital offense.
Justice Kennedy suggested that it was somewhat difficult to defer to the state courtâ€™s factual determinations when those findings included the erroneous holding that Mooreâ€™s confession was properly admissible.Â Kroger replied that the state court was still owed deference for its finding that the motion to dismiss would ultimately have been unavailing.
Arguing for Moore, Steven Wax faced more aggressive questioning from the Court.Â Justice Sotomayor began by suggesting that â€œ[o]nce you put [Moore] in this shootingâ€ then the only issue â€œis that he thinks that because [the killing] was accidental that that presents a defense to felony murder.Â And thatâ€™s clearly an erroneous position on his part.â€Â Justice Alito asked whether Wax was suggesting that all potentially meritorious motions must be litigated.Â Wax replied that he certainly was not â€“ the problem in this case was that Mooreâ€™s attorney did not understand that the confession was suppressible, not that he failed to suppress it in the abstract.
Justice Sotomayor and Justice Breyer next pressed Wax to explain what Mooreâ€™s defense to felony murder would have been had his confession been suppressed.Â Justice Breyer suggested that there was â€œa lot of evidence [that] he shotâ€ the victim, and a lot of evidence that he was involved in the kidnapping.Â Justice Breyer emphasized that even if a killing incident to a kidnapping was accidental, it would still be felony murder.Â Wax answered that Moore could have claimed that although he was present at the kidnapping he was not complicit in the crime; moreover, he could have attacked the credibility of his brother, a police informant who put Moore at the scene of the crime.Â Justice Alito also pressed Wax to lay out a plausible defense to the underlying charge of kidnapping.
Wax emphasized that the controlling precedent for the effectiveness of counsel in the run-up to a plea deal was Hill v. Lockhart, which rested on the likelihood that a defendant would have proceeded to trial had he been given adequate counsel.Â Wax averred that Moore would have not have accepted a plea deal if he had known that his confession was suppressible, but Justice Sotomayor suggested that Moore would have been irrational to do so.Â (Under his plea bargain, Moore received the minimum sentence for felony murder.)
Justices Scalia and Ginsburg noted that there was no record to support Mooreâ€™s claim that he would have proceeded to trial.Â And Justice Breyer suggested that a â€œreasonable personâ€ standard was implicit within the Courtâ€™s precedents: perhaps Moore would actually have proceeded to trial in this case, but if a rational person would have accepted the plea it was hard to say that Moore had been denied his Sixth Amendment rights.Â Even if a jury believed that Moore had accidentally killed the victim as part of a kidnapping, it could not have given him a lighter sentence than the one that he actually received as part of his plea.
Justice Scalia asked about the effect of Mooreâ€™s signature on the plea agreement, which stated that he understood that any evidence against him may have been obtained unconstitutionally.Â Wax answered that the plea agreement was irrelevant, because it was entered under the mistaken understanding that Mooreâ€™s confession was in fact properly obtained.