Rogers v. Dzurenda

• Decision Date: 14 February 2022
• Docket Number: No. 19-17158,19-17158
• Parties: Mark ROGERS, Petitioner-Appellee, v. James DZURENDA; Adam Paul Laxalt; William Gittere, Warden, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.4th 1171

Mark ROGERS, Petitioner-Appellee,

v.James DZURENDA; Adam Paul Laxalt; William Gittere, Warden, Respondents-Appellants.

No. 19-17158

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 19, 2021 Seattle, Washington

Filed February 14, 2022

Jessica E. Perlick (argued), Deputy Attorney General; Aaron D. Ford, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellants.

Heather Fraley (argued) and Randolph M. Fiedler, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellee.

Before: Ronald M. Gould, Andrew D. Hurwitz, and Mark J. Bennett, Circuit Judges.

Concurrence by Judge Hurwitz ;

Separate Statement by Judge Hurwitz ;

Dissent by Judge Bennett

OPINION

GOULD, Circuit Judge:

When newly minted attorney Virginia Shane was appointed as lead counsel in a capital case involving a triple murder, she was not set up for success. Indeed, the deck was stacked against her. Shane's client, Mark Rogers, stood accused of murdering three members of the Strode family. Shane was appointed as Rogers's attorney a mere four months after passing the Nevada bar exam. At that time, she was the only attorney in a satellite office of the Nevada State Public Defender ("NSPD"). Shane recognized immediately after her appointment that a "not guilty by reason of insanity" ("NGRI") argument was her client's strongest— and his only meaningfully supported—defense. Despite these circumstances, Shane received little or no help preparing Rogers's insanity defense until another public defender—equally inexperienced in presenting an insanity defense—became co-counsel shortly before trial.

Trial counsel's representation of Rogers reflected their lack of experience. Their performance was characterized by the failure to take basic steps to prepare their chosen mental health experts for trial and to rebut the State of Nevada's foreseeable evidence. They did not call or even consult the one expert, Dr. Donald Molde, appointed by the court to address Rogers's legal sanity at the time of the offense. These deficiencies made the defense's insanity case less supported, less persuasive, and more vulnerable to predictable and preventable attacks by the prosecution.

The State appeals the district court's judgment granting Rogers's 28 U.S.C. § 2254 habeas corpus petition, which challenged his murder convictions. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Reviewing Rogers's ineffective assistance of counsel claim de novo, see infra Section II.A, we affirm. We hold that: (1) Rogers has satisfied the Strickland v. Washington two-prong test, having demonstrated both that (a) trial counsel exhibited deficient performance and (b) that performance prejudiced Rogers; and (2) the district court did not abuse its discretion in conditionally granting Rogers's habeas petition and giving the State the option to adjudicate Rogers NGRI or to retry him.

I

A

On December 1, 1980, while hitchhiking near Winnemucca, Nevada, Rogers was picked up by Robert Schott. Schott described Rogers as nervous and speaking erratically. Rogers blurted out statements like, "You may not believe it[,] but I'm a good American," and "You may not believe it[,] but I'm on your side." After driving roughly thirty minutes, and while Schott was "on the top of a bridge," Rogers bluntly said, "Let me out, now." Schott let him out.

Around 12:30 p.m. the next day, David Hartshorn picked up Rogers, who was then hitchhiking about twenty miles from Imlay, Nevada. Hartshorn also had a strange conversation with Rogers. Rogers introduced himself as "Teepee," and when Hartshorn asked Rogers where he was going, he said, "Nowhere." Among other things, Rogers told Hartshorn that he lived in a pyramid and that "Somebody is shooting rockets off of Mount Olympus and one of these days it will hit my pyramid and blow me up." Rogers also told Hartshorn, "This is my land. I own it all." Hartshorn gave Rogers a can of soda, which was later found at the crime scene. Rogers also explained that he had slept "[r]ight here," referring to a stretch of highway.

Around 3:30 p.m. that same afternoon, highway maintenance foreman Earl Smith saw Rogers walking roughly seventeen miles south of Denio, Nevada, about 130 miles north of Imlay. Smith and then some of his workers separately gave Rogers a ride. After their interactions with Rogers, Smith and another highway maintenance worker described him as nervous, giving odd answers to questions, and wearing jeans with drawings on them. Some time that day, December 2, 1980, three members of the Strode family were murdered. Rogers v. State , 101 Nev. 457, 461, 705 P.2d 664 (1985).

Rogers was next seen three days later. He tried to enter Canada through the Washington border, wearing a parka-like coat with what appeared to be a towel wrapped around his head or neck. Rogers had gotten into an accident in the Strodes' truck and abandoned it about ten miles south of the Canadian border. When questioned by Canadian immigration authorities, he claimed alternatively that he was a United States citizen and a Canadian citizen.

While interacting with Canadian authorities, Rogers's behavior quickly became angry and erratic. Among other things, he stated that: (1) he wanted political asylum in Canada because he was being persecuted by numerous organizations, including the CIA, motorcycle gangs, the FBI, and the Mafia; (2) he was the "King of North America"; and (3) he was the "Emperor of North America." Rogers was denied entry to Canada.

After vanishing for a period, Rogers reemerged in January 1981. He was arrested in Florida for the Strode murders while standing on the bumper and hanging on to the luggage rack of a station wagon driving down the highway. Rogers told an officer he was standing on the bumper because two men were pursuing him. Rogers then told the officer, "God knew me and that we are all a part of mother nature." In his pocket was a small pad which contained no writing but included drawings of pyramids, figure eights, and other symbols. During questioning, Rogers wrote "I belong to the government" on a paper. Later, at the jail, Rogers claimed that he killed the Strode family in self-defense. Rogers , 101 Nev. at 462, 705 P.2d 664.

B

Rogers was charged in Nevada with capital murder. Shortly after his arrest, and still in January 1981, Virginia Shane was appointed as his lead counsel. Shane worked for the NSPD in its Winnemucca office, where for most of the time she was the only public defender on site. The Winnemucca office was three hours from the main office in Carson City. Shane—who had passed the bar just four months before her appointment—had little legal experience and had never handled a capital case. She also had a workload of over eighty cases, including another capital case and a first-degree murder case. Approximately three months before trial, and several months after Shane was appointed, Robert Bork was added to the defense team. Bork had been a lawyer for only four years at the time of Rogers's trial. Like Shane, Bork had no experience presenting an insanity defense or handling a capital case.

Shortly after her appointment, Shane decided to pursue an NGRI defense. Shane and the prosecutor requested a mental health evaluation for Rogers, to be conducted at the Lake's Crossing Center for Mentally Disordered Offenders ("Lake's Crossing").

The trial court appointed three psychiatrists to assess Rogers. The court directed Dr. Donald Molde to evaluate Rogers to determine whether he was competent to stand trial and assist in his defense, and whether he was sane at the time of the offense. The court appointed two other psychiatrists solely to address Rogers's competency to stand trial: Dr. Louis Richnak, the Lake's Crossing medical director, and Dr. Phillip Rich, who also did evaluations at Lake's Crossing and taught at the University of Nevada's medical school.

At Rogers's competency hearing, Dr. Richnak testified that Rogers was schizophrenic and not competent to consult with his attorneys. Dr. Molde testified that Rogers "had signs and symptoms of paranoid schizophrenia," but he nevertheless thought Rogers was competent to stand trial. Significantly, however, Dr. Molde opined that Rogers was likely not competent at the time of the offense or his arrest. Lake's Crossing psychologists Martin Gutride and Robert Hiller both testified that Rogers was competent to stand trial. The trial court ordered further testing and evaluation.

Several months after the competency hearing, the trial court found Rogers competent to proceed to trial.

C

In the eight months before trial, at least ten mental health professionals evaluated Rogers. Although Shane had decided to present an NGRI defense immediately after her appointment, trial counsel waited until the month before trial to discuss the issue of insanity with any mental health professional.¹

Trial counsel selected three psychiatrists to support Rogers's insanity defense: Drs. Richnak (who had testified at Rogers's competency hearing), Rich, and Ira Pauly. Although Dr. Molde had previously testified about Rogers's competency at the time of the offense, evaluated Rogers five times before trial, and diagnosed Rogers with schizophrenia, trial counsel did not consult him in preparation of Rogers's NGRI defense nor ask him to testify at trial.

Despite choosing Drs. Richnak and Rich to testify for the defense, trial counsel never met with them before trial or prepared them for their testimony by, among other things, going through the DSM-III² with them or discussing the report of the State's expert. Trial counsel also did not give Drs. Richnak and Rich the police reports detailing Rogers's extraordinary behavior before and after the offense. Further, trial counsel did not even discuss Rogers's mental state at the time of the offense with the two experts before they took the stand. The only...