Rogers v. Dzurenda, No. 19-17158 (9th Cir. 2022)
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Four months after passing the bar exam, Shane was appointed as counsel for Rogers in a 1981 capital case involving a triple murder. She was the only attorney in a Nevada State Public Defender's satellite office. Shane recognized that a “not guilty by reason of insanity” (NGRI) argument was her client’s only meaningfully supported defense. Another inexperienced public defender became co-counsel shortly before trial. Counsel failed to prepare their mental health experts for trial and to rebut foreseeable evidence. They did not even consult the expert appointed to address Rogers’s legal sanity at the time of the offense. Rogers was sentenced to death.
The Ninth Circuit affirmed a judgment conditionally granting Rogers’s 28 U.S.C. 2254 habeas corpus petition. The ineffective assistance claim was never adjudicated on the merits by the Supreme Court of Nevada. Rogers satisfied the “Strickland” test. Even applying the presumption of reasonableness, counsel’s investigation, preparation, and execution of the insanity defense fell below an objective standard of reasonableness. Counsel’s most significant error was failing to consult the expert appointed to assess Rogers’s competency for trial and sanity at the time of the offenses; this error was compounded by the inadequate preparation of counsel’s mental health experts. Counsel's failures to rebut the prosecution’s expert and to explain the NGRI defense to the jury in opening statements fell below an objective standard of reasonableness. There was a reasonable likelihood that Rogers’s NGRI defense would have succeeded if counsel had performed effectively.
Court Description: Habeas Corpus. Affirming the district court’s judgment granting Mark Rogers’s 28 U.S.C. § 2254 habeas corpus petition challenging his murder convictions, the panel held that: (1) Rogers satisfied the Strickland v. Washington two-prong test for ineffective assistance of counsel; and (2) the district court did not abuse its discretion in conditionally granting Rogers’s habeas petition and giving the State of Nevada the option to adjudicate Rogers not guilty by reason of insanity (“NGRI”) or to retry him. Because the ineffective assistance claim before the district court was never adjudicated on the merits by the Supreme Court of Nevada, the panel reviewed the claim de novo. On Strickland’s deficient performance prong, the panel held that, even applying the presumption of reasonableness, trial counsel’s investigation, preparation, and execution of their chosen insanity defense fell below an objective standard of reasonableness. The panel wrote that (1) trial counsel’s most significant error was failing to call as a witness—or consult at all—the expert the trial court had appointed to assess Rogers’s competency for trial and sanity at the time of the offenses; (2) this error was compounded by the inadequate preparation of counsel’s chosen mental health experts; (3) trial counsel performed deficiently by not preparing to rebut the State’s mental health expert; and ROGERS V. DZURENDA 3 (4) trial counsel’s failure to explain the elements of the NGRI defense to the jury in their opening statement fell below an objective standard of reasonableness. On Strickland’s prejudice prong, and focusing on what a reasonable, impartial juror would find compelling, the panel concluded there was a reasonable likelihood that Rogers’s NGRI defense would have succeeded if trial counsel had performed effectively. Although trial counsel’s performance was replete with errors, the panel emphasized that the State’s staffing and funding of Rogers’s case contributed to those errors. The panel concluded that the district court—which conditionally granted the writ with instructions for the State to either adjudicate Rogers NGRI or retry him—did not abuse its discretion in fashioning relief, which is narrowly tailored to address the ineffective assistance of counsel without awarding Rogers an unwarranted windfall. Judge Hurwitz concurred in full. He also filed a separate statement, joined by Judges Gould and Bennett, in which he emphasized that the difficult issues confronted in this case might have been avoided had Nevada paid sufficient attention to the appointment of qualified capital counsel. Judge Bennett dissented. He wrote that the majority’s characterization of the trial as a battle of experts obscures reality. He agreed that Nevada failed Rogers in allowing such inexperienced counsel to defend him in a capital case, but wrote that the facts left little room for masterful counsel, much less merely adequate counsel, to have proven that Rogers was legally insane when he committed the killings; 4 ROGERS V. DZURENDA and that even considered together, the alleged errors identified by the majority did not prejudice the defense.
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