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Ninth Circuit, on Rehearing, Changes Course in Death Case
Opinion Says, Departing from Last Year’s Decision, That California Supreme Court Did Not Err in Upholding Sentence of Soviet Army Defector Despite Possible Ineffective Assistance of Counsel, Drawing Dissent From Wardlaw
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals yesterday affirmed, in a 2-1 decision, the conviction and sentence of a habeas corpus petitioner who was sentenced to death for the 1988 murder of a woman who had hosted him in her home after his defection from the army of the Soviet Union, reversing course, on rehearing, from a decision last year in which the court found that ineffective assistance of counsel at the penalty phase justified relief.
Petitioning the court was Tauno Waidla, who was convicted of the brutal killing of Viivi Piirisild, with a hatchet, after she asked him to move out of the family home when she became unhappy with his purported unwillingness to work or go to school.
On May 23, 2023, the Ninth Circuit concluded, in a per curiam opinion by Circuit Judges Kim McLane Wardlaw and Paul J. Watford, that Waidla’s trial counsel, Martin Gladstein (now on inactive status), had fallen below the objective standard of reasonableness and prejudiced the defendant, as required to state a claim for ineffective assistance of counsel under the 1984 U.S. Supreme Court decision in Strickland v. Washington.
Mitigating Evidence
Specifically, Wardlaw and Watford opined that the attorney was deficient in failing to investigate and introduce three categories of potentially mitigating evidence at the penalty phase—the hardships faced during his time in the Soviet army, Waidla’s good behavior since being incarcerated, and character evidence from his family in his home country of Estonia.
Wardlaw and Watford wrote:
“We hold that the California Supreme Court unreasonably applied Strickland’s standard in evaluating Waidla’s claim of ineffective assistance at the penalty phase. Had the…evidence that counsel should have discovered been presented to the jury, there is a reasonable probability that at least one juror would have voted against the death penalty.”
Circuit Judge Eric D. Miller dissented, saying that the decision of the high court “requires our deference.”
While a request for rehearing was pending, Circuit Judge Morgan B. Christen was drawn to replace Watford (who retired on May 31, 2023). She asked for oral argument and the case was reargued in January.
Christen and Miller signed yesterday’s per curiam opinion, finding no relief from the penalty was warranted. Wardlaw, unchanged in her views, dissented.
State Court Review
Waidla was sentenced to be executed by Los Angeles Superior Court Judge Howard J. Schwab (now deceased) in December 1991. In an opinion by Justice Stanley Mosk (also now deceased), the state high court affirmed Waidla’s conviction and death sentence on April 6, 2000, and the U.S. Supreme Court denied certiorari on Nov. 27 of that year.
Mosk’s opinion made a single reference to Strickland, saying only that “we reject” the claim of ineffective assistance due to “failing to attempt to introduce, for mitigation, evidence of a portion of a confession” by an accomplice.
In 2005, the state high court denied habeas relief. The opinion, authored by then-Justice Kathryn M. Werdegar made no mention of Strickland.
Habeas Relief
In seeking habeas relief in the District Court, Waidla’s attorney, then-Deputy Federal Public Defender Scott T. Johnson (now with the Los Angeles County Alternate Public Defender’s Office), argued:
“After failing in his representation of Mr. Waidla in the guilt phase of his trial, counsel did not present any evidence at the penalty phase of the trial. Not a single witness was called. This unique penalty phase presentation reflected counsel’s utter failure to conduct any of the constitutionally-required investigation into his client’s background that is called for in death penalty cases.”
Then-District Court Judge Andrew J. Guilford of the Central District of California (now a mediator/arbitrator) agreed and granted relief from the sentence of death.
Guilford said that Gladstein, was “clearly deficient in light of counsel’s complete failure to investigate or present mitigation evidence, which includes information regarding Petitioner’s childhood and background…, his pro-social behavior, lack of future dangerousness” and added that “the…Supreme Court’s rejection of Petitioner’s penalty phase claim was an unreasonable application of clearly established federal law.”
Christen, Miller View
In yesterday’s opinion, Christen and Miller explained that under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “[a] court may not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law.’ ”
Applying the standard, they turned to the three categories of purported mitigating evidence cited by the defense.
They noted that the jury was presented with evidence about Waidla’s time in the army during the guilt-phase of the trial and commented:
“Waidla argues that had the jury heard more evidence about the difficulties and hardships he encountered while serving in the Soviet military, it might have made a difference to the outcome of the penalty phase. This argument fails because the jury had Waidla’s first-hand account of the inhumane conditions, bullying, and constant fear of death he experienced as a conscript….The jury also heard guilt-phase testimony that Estonia was under Soviet occupation and that Waidla received political asylum in the United States after escaping from the Soviet Army….”
Considering the character evidence cited by Waida, they disputed whether testimony that he had strong bonds with family members back in his country of origin would be beneficial to him, saying that “reasonable jurors could have decided” that his healthy family background “made him more morally culpable, not less.”
Turning to his lack of disciplinary problems since his incarceration, the jurists said that “[i]n our view, fairminded jurists could reasonably conclude that the omission did not prejudice Waidla.”
Comparing Evidence
Saying “[t]hat Waidla was not prejudiced by the failure to present this mitigating evidence becomes especially clear when comparing the mitigating evidence with the substantial aggravating evidence,” the judges remarked:
“Even viewed cumulatively, the jury was left with no evidence that could explain the shocking and unexpected nature of the attack against Viivi. There was no indication of alcohol or drug use, and no evidence of any mental health diagnosis that sometimes explains a sudden outburst and act of violence. Given the strong evidence that Waidla was angry with Viivi, planned the attack, and waited with a hatchet for Viivi to enter her home, it is hard to see how a jury could view Viivi’s murder as a ‘momentary assaultive outburst.’ ”
They declared that “[o]ur task is limited to determining whether fairminded jurists could disagree that Waidla was prejudiced by his counsel’s failure to present any of this mitigating evidence” and “[w]e conclude, under AEDPA, that the California Supreme Court’s conclusion that Waidla was not prejudiced by his counsel’s alleged errors was not unreasonable, and we reverse.”
Christen’s Concurrence
Christen wrote separately to emphasize that “[t]hough I conclude that the California Supreme Court’s prejudice analysis was not unreasonable, I also conclude that some aspects of Waidla’s counsel’s performance fell below an objectively reasonable standard.”
She explained that “counsel did not interview any potential witnesses from Estonia or conduct an investigation to discover what evidence might be available….Waidla had no criminal history and the record does not show that there were other episodes in his past that counsel purposefully side-stepped. To the contrary, the evidence shows that despite initial hardships in his childhood, Waidla was well-liked by his peers in Estonia, performed reasonably well in school and in sports, and did not exhibit anti-social or violent behavior.”
Under the circumstances, she said that “[m]ustering a successful counterweight to Waidla’s violent crime would have been an uphill battle under any circumstances, but in my view, despite the deference we afford to counsel’s strategic choices, the failure to investigate these avenues and present this mitigation evidence fell below an objective standard of reasonableness.”
Wardlaw’s Dissent
Wardlaw commented that “[c]onsistent with our opinion issued May 23, 2023….I continue to believe that counsel performed deficiently during the penalty phase and that this deficient performance prejudiced Waidla.”
She acknowledged that “Waidla committed a heinous and gruesome crime that deserves punishment” but said:
“I would hold that the California Supreme Court unreasonably applied Strickland’s standard in evaluating Waidla’s claim of ineffective assistance at the penalty phase. Had the three categories of evidence that counsel should have discovered been presented to the jury, there is a reasonable probability that at least one juror would have voted against the death penalty.”
The case is Waidla v. Davis, 18-99001.
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