U.S. v. Hearst, 78-3612

• Citation: 638 F.2d 1190
• Decision Date: 15 January 1981
• Docket Number: No. 78-3612,78-3612
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patricia Campbell HEARST, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1190

638 F.2d 1190

UNITED STATES of America, Plaintiff-Appellee, v. Patricia Campbell HEARST, Defendant-Appellant.

No. 78-3612.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 1980.

Decided Oct. 17, 1980.

Rehearing Denied Jan. 15, 1981.

George C. Martinez, San Francisco, Cal., for defendant-appellant.

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., argued for plaintiff-appellee; Edward P. Davis, Jr., Asst. U.S. Atty., San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before CHOY and GOODWIN, Circuit Judges, and THOMPSON, ^* District Judge.

CHOY, Circuit Judge:

Hearst appeals the district court's denial, without discovery or a hearing, of her motion for "habeas corpus," 28 U.S.C. § 2255. We affirm in part and vacate in part, and remand for further proceedings.

I. Introduction

Hearst was arrested in September 1975 for bank robbery. Soon after, she made incriminating statements, which were captured by jail officials on the "Tobin tape," in a jailhouse interview with her friend Tobin. F. Lee Bailey and his associate J. Albert Johnson entered the case on October 2 as Hearst's counsel and prepared a defense based on a coercion theory. They did not move for a change of venue or for a continuance on the ground of pretrial publicity, choosing instead to rely on the voir dire of the prospective jurors. Their motion to suppress the Tobin tape was denied. Trial began in February 1976. Bailey put Hearst on the witness stand; she took the Fifth Amendment in the presence of the jury. Hearst was convicted on March 20. Her motions for a new trial were denied. She took an unsuccessful appeal, and certiorari was denied. 563 F.2d 1331 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). Bailey and Johnson were fired, and through present counsel Hearst filed a § 2255 motion, which Judge Orrick denied without a hearing. 466 F.Supp. 1068 (N.D.Cal.1978). While the appeal from this ruling was pending, President Carter commuted Hearst's sentence. ¹

Most of the above is well known, for Hearst's case was a cause celebre. We now know, in addition, that during the course of the proceedings Bailey contracted to write a book about the trial, thus raising questions of potential or actual conflict of interest.

Bailey has admitted by affidavit that

In February of 1976, I had received several offers to publish a book concerning the Hearst trial. A contract was eventually signed with G. P. Putnam, however, that contract was made contingent upon Ms. Hearst agreeing not to write about her experiences for a period of eighteen months subsequent to the publication. I indicated to Putnam that I would not submit any agreement on this subject to Ms. Hearst while the matter was still being litigated and the contract thus remained contingent upon Ms. Hearst's approval.

On March 22, 1976, Hearst signed the following covenant:

March 22, 1976

Putnam/Berkley Publishing Corp.

New York, New York

Gentlemen:

I understand that F. Lee Bailey is writing a book about my trial and life story as it pertains to the trial for which he will contract with you for publication in the United States and Canada.

As an inducement for you to publish this book, I hereby agree not to publish any account of my experiences in book, magazine, or any other form, prior to 18 months from your initial (hardcover) publication of Mr. Bailey's book, and I further agree to cooperate fully and exclusively with Mr. Bailey in his preparation and writing of the book in any manner he requires.

Very truly yours,

/s/ Patricia C. Hearst

Patricia Campbell Hearst

PCH.sm

Randolph Hearst, appellant's father, declared by affidavit that in September 1975 he discussed with Bailey the possibility of a book, and did not rule out the possibility. Mr. Hearst declared that he did not consider book rights to be part of the fee arrangement for the trial. He declared further that "after . . . trial" Johnson told him that Bailey wanted to write a book about Ms. Hearst's trial, that this would be part of the fee arrangement for the appeal, and that Ms. Hearst would have to sign a covenant not to publish anything for eighteen months after the trial. Mr. Hearst, not knowing that Bailey had negotiated or contracted during the trial to write a book, told Johnson to tell Ms. Hearst that he had no objection to the arrangement Johnson had described.

Ms. Hearst declared by affidavit that before trial Johnson told her that Bailey would write a book about her, that the book rights were part of the fee arrangement her parents had made, that she had to agree to the arrangement but was not to discuss it, and that Johnson would someday ask her to sign a paper relating to it. She further declared that on March 22, two days after her conviction, Johnson brought her the covenant and said, "Remember the paper I would be bringing you to sign one day; well this is it"; that she did not have independent counsel, feel a sense of free will, or understand the effect of the covenant; and that it was never her desire that Bailey write a book about her or the trial. ²

II. Hearst's Contentions

Hearst makes the following contentions on appeal:

A. Her Sixth Amendment right to the assistance of counsel was violated when Bailey pursued his own interest in publication rights, rather than her interest in acquittal, by (1) failing to seek a continuance; (2) failing to seek a change of venue; (3) putting Hearst on the witness stand; (4) failing to investigate the Tobin tape issue; and (5) failing to investigate the possibility that involuntary ingestion of hallucinogens overcame Hearst's will.

B. Aside from any conflict of interest, Bailey's failure to pursue the defense based on the involuntary ingestion of hallucinogens was incompetence that violated the Sixth Amendment.

C. Aside from any conflict of interest, Bailey's failure to succeed in suppressing the Tobin tape was incompetence that violated the Sixth Amendment.

D. In any event, the Constitution forbade the introduction of the Tobin tape.

E. Because pretrial publicity made a fair trial impossible, the conviction was obtained without due process of law.

We vacate and remand for hearings under § 2255 on contentions (A)(1), (2), and (3). We affirm the district court's other rulings.

A. Conflict of Interest

Hearst claims that Bailey's book contract created a conflict of interest that deprived her of her Sixth Amendment right to the assistance of counsel. This alleged conflict was not total, for surely the salability of Bailey's book would have been enhanced had he gained an acquittal for Hearst. Nonetheless, Hearst charges that Bailey (1) failed to seek a continuance, so public interest would not cool and competing authors would not get the jump on him; (2) failed to seek a change of venue, because publicity would be maximized by a trial in San Francisco, a media center and the home of the Hearst family; and (3) put her on the witness stand, so her story would go on the public record and he would not be constrained by the attorney-client confidentiality rules. These decisions prejudiced Hearst, she says, because the case came to trial in the full heat of prejudicial publicity, and she was forced to plead the Fifth forty-two times in the presence of the jury.

The Government and Bailey denied that Bailey's book interest played any role in these tactical decisions, and advanced plausible reasons why he made those decisions.

The district court denied relief, on the grounds that counsel's reasonable tactical decisions could not be challenged, and that Hearst had not shown actual prejudice. 466 F.Supp. at 1075-76, 1083, 1087.

We hold that the district court erred in denying Hearst a hearing on these issues. ³ On remand, the district court should conduct a hearing and apply to the facts the law recently laid down by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

1. The Cuyler v. Sullivan Test

In Cuyler v. Sullivan, a decision of which the district court did not have the benefit, the Supreme Court considered a claim that retained counsel's conflict of interest violated the client's Sixth Amendment right to the assistance of counsel. Sullivan sought federal habeas corpus relief from a state conviction, whereas Hearst's conviction was federal; Sullivan's lawyer's conflict was based on multiple representation, whereas Hearst's was based on private financial interests. These differences are immaterial. We consider the rules laid down in Sullivan to be directly applicable to the present case, and they should govern the case on remand.

The Sullivan Court held that counsel's mere potential conflict of interest does not entitle a convict to relief. "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348, 100 S. Ct. at 1718. But "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Id.

We read Sullivan to define an actual, as opposed to a potential, conflict as one which in fact adversely affects the lawyer's performance. But the requirement that the petitioner show this adverse effect is not the same as the requirement of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), that the petitioner show that counsel's incompetent assistance resulted in actual prejudice. For example, overwhelming evidence of guilt might (as in Cooper itself) make almost impossible a showing that a relatively minor error resulted in actual prejudice. But such evidence would be completely irrelevant to an inquiry whether the same error, if caused by an actual conflict of interest, showed an...