Court Says Proper Defense Would Unveil ‘Real Killer’

     PASADENA, Calif. (CN) — The Ninth Circuit awarded habeas relief Thursday to a man who may have been wrongly convicted of stabbing a woman and her 8-year-old son to death in 1981.
     James Hardy has been serving consecutive life sentences for two counts of first-degree murder and one count of conspiracy to commit murder to collect life insurance proceeds in relation to the deaths of Nancy Morgan and her son. However, his trial counsel failed to present considerable evidence that the state’s key witness, Calvin Boyd, was likely the actual killer.
     U.S. District Judge Stanley Allen Bastian, sitting on a Ninth Circuit panel by designation from the Eastern District of Washington, outlined the case in his 31-page opinion.
     Morgan’s husband, Clifford Morgan, hatched the plan to have his wife and son murdered. He recruited a man named Mark Anthony Reilly to carry out the killings while Clifford was away in Carson City, Nev. Reilly in turn attempted to recruit Boyd. But Boyd said at trial that he would not do it without being given money or cocaine beforehand. Instead, the state proffered, Reilly recruited Hardy.
     The state built its case largely on the testimony of Boyd and Colette Mitchell, Hardy’s girlfriend at the time of the murders. Hardy’s attorney, Michael Demby, neither gave an opening statement nor presented any evidence. Hardy and Reilly were convicted and sentenced to death. Clifford Morgan was also convicted, but died of cancer before sentencing.
     However, at a fact-finding hearing conducted by the Los Angeles County Superior Court in 1996 and 1997, several witnesses testified that Boyd made statements incriminating himself, that his alibi was false and that Hardy refused to participate in the murders. Furthermore, the state did not adequately investigate Boyd and concealed the fact that it granted Boyd immunity for his testimony. The superior court determined that Demby was deficient for failing to investigate Boyd and present evidence that Hardy could not have been present when the killings happened.
     In 2007, the California Supreme Court determined that this information, had it emerged during trial, may have presented a reasonable doubt about Hardy’s guilt. The Supreme Court also found that Demby provided deficient counsel. It vacated Hardy’s death sentence, but determined that there was still “substantial evidence” that he was guilty under an aid-and-abet or conspiracy theory.
     Bastian, delivering the Ninth Circuit panel’s 2-1 ruling, wrote that the decision in this case turns on whether the California Supreme Court’s ruling was contrary to clearly established federal law under the United States Supreme Court’s decision in Strickland v. Washington, the defining case for ineffective assistance of counsel claims.
     “Although the California Supreme Court recited the Strickland standard, it concluded that because there was ‘substantial evidence’ against Hardy he suffered no prejudice from Demby’s deficient performance,” Bastian wrote. “This was not the correct standard, and consequently, the relevant question regarding prejudice at the guilt phase was never properly addressed.”
     Instead, the correct standard was whether a reasonable probability existed that Hardy would not have been found guilty absent his counsel’s errors, Bastian said.
     “We note that the California Supreme Court actually did address the prejudicial effect of Demby’s performance but only in relation to Hardy’s actual innocence claim—not as to his ineffective assistance claim,” Bastian wrote.
     If Demby had discovered and presented the evidence against Boyd, it is not reasonable to think Hardy would have been convicted on a conspiracy or aid-and-abet theory, Bastian argued.
     “No witness except Boyd placed Hardy at the scene of the crime, no witness reported seeing Hardy leaving the apartment complex the night of the crime, and no blood, fingerprint, footprint, hair, or other forensic evidence linked Hardy to the crime,” Bastian wrote. “No murder weapon was found and no evidence was presented that linked Hardy to any knife similar to the one used by the killers. Indeed, no physical evidence whatsoever linked Hardy to the crime. Hardy was convicted of being the actual killer primarily on the strength of Boyd’s now discredited testimony. It cannot be reasonably argued that strong or overwhelming evidence of guilt under any theory exists without Boyd’s testimony.
     “Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime,” Bastian continued. “We are not in a position to determine if, or to what extent, Hardy may have been involved in these heinous murders. But we can, and do, find that when the California Supreme Court failed to find ineffective assistance of counsel, its denial of Hardy’s claim was both contrary to and objectively unreasonable under Strickland.”
     U.S. Circuit Judge Consuelo Callahan disagreed.
     “The California Supreme Court’s meticulous opinion comports with Strickland . . . ” Callahan wrote in his 21-page dissent. “The court concluded that [Hardy’s] representation undermined the theory that Hardy actually stabbed the victims, thus prejudicing the death penalty verdict and justifying its vacatur. The court found no additional prejudice to the conviction, however, because critical post-conviction evidence did not blot out the substantial trial evidence establishing that Hardy conspired to commit, and aided and abetted, the murders.”
     Hardy was represented in his appeal by Elizabeth Richardson-Royer, Deputy Federal Public Defender, and Hilary Potashner, Federal Public Defender, both out of Los Angeles.
     Kevin Chappell, a member of California’s Board of Parole Hearings, is the named defendant in this case. He was represented by Colleen Tiedemann, Deputy Attorney General; Kenneth Byrne, Supervising Deputy Attorney General; Lance Winters, Senior Assistant Attorney General; Gerald Engler, Chief Assistant Attorney General and Kamala Harris, Attorney General of California.
     “Today’s ruling is a long-overdue step toward justice for Mr. Hardy, who has served 35 years in prison based on the false testimony of the actual killer,” Richardson-Royer said in a statement. “While nothing can give Mr. Hardy back the many years he has been wrongfully incarcerated, we are pleased that the court did the right thing today.”
     The Attorney General’s office said it is “reviewing the lengthy opinion.”

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