CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 20, 2005

9th Circuit: Murder Conviction Reversed Based on Defendant's Distrust of His Lawyer

The Ninth Circuit reversed Larry James Plumlee's murder conviction based on distrust that arose between Plumlee and his appointed attorney. (Plumlee discovered that the chief deputy public defender was friends with Plumlee's roommate, who also was a suspect in the murder case).  The opinion provoked a strong dissent, and the State intends to petition for rehearing and an en banc hearing.  If upheld Plumlee will either walk free or stand a new trial in Nevada.

From "'The resulting distrust that arose between Plumlee and his appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at all,' [Judge Betty Fletcher] wrote.  Plumlee ended up representing himself at trial and was eventually convicted and sentenced to two life terms...

Perhaps it's fitting that the contentious case originated in the courtroom of former Washoe County Judge Mills Lane III, best known as the boxing referee whose catchphrase -- "let's get it on" -- kicked off dozens of boxing matches. Most notoriously, he officiated the 1997 fight in which Mike Tyson gnawed off a piece of Evander Holyfield's ear.

In the Plumlee case, Lane expressed clear discomfort with the defendant's relationship with public defenders, most notably the fact that Plumlee's roommate -- and suspect in the murder -- John Dewey was a close friend of Shelly O'Neill, the chief deputy public defender. Plumlee became convinced that O'Neill was leaking information to Dewey...But Lane said he was constrained from addressing that issue by an earlier Nevada Supreme Court review of the case.

In addition to the friendship between his roommate and the defender's office, Plumlee's suspicion was stoked when he found that his initial defense lawyer was leaving to become a prosecutor, and that his second public defender suggested that Plumlee might need psychiatric treatment.

In his dissent, [Judge Carlos Bea] said the majority opinion relied too heavily on the defendant's subjective beliefs. 'The majority disregards the voluminous evidence suggesting Plumlee's distrust was based on incidents that either did not occur or were fabricated by Plumlee,' he wrote...

By allowing Plumlee's distrust to be an "irreconcilable conflict" requiring a change of counsel, Bea wrote, 'the majority sets forth a rudderless, subjective rule for finding an 'irreconcilable conflict' between a criminal defendant and his counsel.'... If upheld, he added, the opinion would create 'a new, unworkable rule which raises to constitutional dimensions a defendant's unfounded suspicions.'" Story... [Mark Godsey]

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