Wharton v. Calderon

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 127 F.3d 1201
• Docket Number: Nos. 96-99021,96-99023,s. 96-99021
• Parties: 47 Fed. R. Evid. Serv. 1214, 97 Cal. Daily Op. Serv. 8474, 97 Daily Journal D.A.R. 13,713 George Herbert WHARTON, Petitioner-Appellee, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellant.
• Decision Date: 05 November 1997

Page 1201

127 F.3d 1201 47 Fed. R. Evid. Serv. 1214, 97 Cal. Daily Op.
Serv. 8474,
97 Daily Journal D.A.R. 13,713 George Herbert WHARTON, Petitioner-Appellee,
v.
Arthur CALDERON, Warden of the California State Prison at
San Quentin, Respondent-Appellant. Nos. 96-99021, 96-99023. United States Court of Appeals,
Ninth Circuit. Argued and Submitted July 25, 1997.
Decided Nov. 5, 1997.

Page 1202

Richard S. Moskowitz, Deputy Attorney General, Los Angeles, California, for respondent-appellant.

Michael W. Fitzgerald, Law Offices of Robert L. Corbin, Los Angeles, California, for petitioner-appellee.

Appeals from the United States District Court for the Central District of California; David V. Kenyon, District Judge, Presiding. D.C. No. CV 92-3469 KN

Before: HUG, Jr., Chief Judge, and BROWNING and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

George Herbert Wharton has pending in the district court his petition for a writ of habeas corpus challenging his first-degree murder conviction, with special circumstance, and sentence of death in the California state courts. See People v. Wharton, 53 Cal.3d 522, 280 Cal.Rptr. 631, 809 P.2d 290 (1991). In his habeas petition, Wharton raises, inter alia, broad claims of ineffective assistance of counsel.

On Wharton's motion, the district court issued a protective order prohibiting the respondent Warden of the San Quentin State Prison (Warden) from communicating with 14 potential witnesses and two groups, ¹ except by noticed deposition. ² The Warden

Page 1203

appeals from that order and a subsequent order of clarification. ³

In his first amended petition for writ of habeas corpus, Wharton alleges the ineffective assistance of trial counsel. These allegations consist of 29 separate claims, some with multiple sub-parts. In addition, Wharton also alleges claims for the ineffective assistance of psychiatric experts, appellate counsel and numerous claims of ineffective assistance of trial counsel in connection with his 1975 second-degree murder conviction. ⁴

The district court recognized that "[w]hen a petitioner in a habeas corpus action raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege. (citation omitted)." It also found "that Petitioner impliedly waived the attorney-client privilege at the time his habeas corpus petition was first filed in federal district court." While recognizing that "wide-ranging attacks on the competence of counsel may imply a broad waiver of the attorney-client privilege," the district court concluded that "it does not follow that Petitioner has waived the privilege as to all communications with his counsel." (Emphasis in original.) However, the trial court made no finding of what areas, if any, of attorney-client communication remain unwaived. Thus, it appears that the district court proceeded on the assumption that there were potential areas of unwaived attorney-client communication which deserved the court's protection.

The district court also recognized, however, that the Warden "should be allowed to inquire into the circumstances surrounding Petitioner's claims in order to present an adequate defense." It found, however, that "allowing Respondent to have informal and unlimited contact with Petitioner's former counsel would not adequately safeguard Petitioner's interest in protecting the scope of his implied waiver. Therefore, counsel for Petitioner should be given the opportunity to protect Petitioner's interests in a more formal and regulated setting." The district court then entered its order prohibiting the Warden "from communicating with Petitioner's former trial or appellate counsel and their agents about any matters relating to Petitioner's [Petition] for a Writ of Habeas Corpus except in a deposition setting, with Petitioner's counsel present." The district court did not, on the record, consider any less restrictive alternative to its blanket no-interview protective order.

I.

We must first determine whether the protective order, and its clarification order, are appealable under the collateral order doctrine, as the Warden contends it is. For an interlocutory order to be appealable as a "collateral order," it must satisfy three requirements: It must be conclusive, resolve an important question separate from the merits, and be effectively unreviewable on appeal from a final judgment. Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1207, 131 L.Ed.2d 60 (1995); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Wharton concedes that the protective order meets the first requirement of conclusiveness, and we agree. He disputes, however, that it meets the remaining two requirements. We disagree.

In Jackson v. Vasquez, 1 F.3d 885 (9th Cir.1993), we held that an order requiring the State, at its expense, to transport a potential habeas corpus petitioner ⁵ to a medical facility for a brain scan met the second and third requirements of the collateral order doctrine. Id. at 888. On the second requirement, we said:

The transportation order also resolves an important issue that is completely separate from the merits of the underlying action. The decision that the Warden appeals

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here is the district court's determination that it possessed the legal authority to issue the transportation order. The Warden's claims present pure questions of law that can be reviewed without reference to the merits of Jackson's habeas corpus petition. The transportation order is not a mere step toward final disposition of Jackson's claims, but rather it " 'plainly presents an important issue separate from the merits' " of the habeas petition. Gulfstream Aerospace [Corp. v. Mayacamas Corp.], 485 U.S. at 277, [108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988)] (quoting Moses H. Cone [Memorial Hosp. v. Mercury Const. Corp.], 460 U.S. at 12 [103 S.Ct. 927, 935, 74 L.Ed.2d 765 (1983)]); see also Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.

Id. With respect to Cohen's third requirement, we held:

Finally, the transportation order will evade effective review on appeal of the decision on Jackson's petition for habeas corpus. Regardless of the district court's disposition of the habeas petition, the Warden will not be able to show, on appeal from the final decision, that he was unfairly prejudiced in the habeas proceedings as a result of his compliance.

Id.

What we held with respect to the transportation order in Jackson applies with equal force to the protective order here. The Warden's right to interview witnesses is "an important issue that is completely separate from the merits of the underlying action" that has been "resolved" by the protective order. That order also "will evade effective review on appeal of the decision on [Wharton's] petition for habeas corpus," because "the Warden will not be able to show, on appeal from the final decision, that he was unfairly prejudiced in the habeas proceeding as a result of his compliance." Id.

Thus, the protective order satisfies all three requirements of the collateral order doctrine; accordingly, we have jurisdiction over this appeal.

II.

We observe at the outset that a party's right to interview witnesses is a valuable right. Witness interviews are one of the primary investigative techniques. Every federal criminal law practitioner is familiar with "302s," the FBI's witness interview form and the potential value of access to the 302s in any case. Witness interviews serve a different purpose than depositions. As one court observed:

[T]here are entirely respectable reasons for conducting discovery by interview vice deposition: it is less costly and less likely to entail logistical or scheduling problems; it is conducive to spontaneity and candor in a way depositions can never be; and it is a cost-efficient means of eliminating non-essential witnesses from the list completely.

Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C.1983). See also Cacoperdo v. Demosthenes, 37 F.3d 504, 509 (9th Cir.1994) ("both sides have the right to interview witnesses before trial") (citations and internal quotations omitted); United States v. Cadet, 727 F.2d 1453, 1469 (9th Cir.1984) ("Witnesses ... are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them.") (citation and internal quotations omitted).

Finally, in International Bus. Mach. Corp. v. Edelstein, 526 F.2d 37 (2d Cir.1975), the court held that the trial judge had exceeded his authority by restricting witness interviews, stating that the trial judge "apparently looked upon an interview as the taking of a deposition," when,...