CA’s 9th Circuit Overturns Death Penalty, but Lets Conviction Remain in 1988 Murder Case against Former Russian Soldier

By Noah Friedlander
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By Crescenzo Vellucci

The Vanguard Sacramento Bureau

SAN FRANCISCO, CA – The U.S. Court of Appeals for the 9th Circuit in California last week affirmed habeas corpus relief and overturned the death sentence for Tauno Waidla, citing ineffective counsel at the penalty phase of his trial. 

But the Ninth Circuit panel, after voting 2-1 to save Waidla’s life, affirmed the denial of relief that would have overturned his conviction for a 1988 murder that happened during a burglary and robbery with the use of a deadly and dangerous weapon.

The Appeals court upended a California Supreme Court unanimous decision in 2000 to affirm both the conviction and death sentence for Waidla, when the defense claimed ineffective counsel.

The panel concluded “had the three categories of evidence that (trial defense) 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 court said the accused’s trial counsel erred in not helping the Estonian refugee, fleeing the Russian Army.

The court strongly criticized counsel for Waidla at trial for not doing more research into the accused’s character, noting, “Waidla’s resistance to having counsel perform a social history investigation did not eliminate counsel’s duty to investigate his background…counsel “never made a serious attempt to educate (the accused) about the consequences of his decision.”

“(A)lthough counsel would have faced logistical hurdles to investigating abroad, those challenges did not eliminate counsel’s duty to investigate. Since counsel was aware that a social history investigation could have revealed useful mitigation evidence, we held that he had rendered ineffective assistance because his co-counsel made only one trip to Germany,” said the court.

“Waidla’s counsel was on notice of the need for a social history investigation. That counsel broached the question of investigating in Estonia with Waidla multiple times shows that he was aware of the significance of a social history investigation…counsel fell short of professional standards by abandoning his efforts to investigate through travel to Estonia or other means,” the court said.

According to a legal analysis by Horvitz & Levy LLP, the nation’s largest law firm devoted exclusively to appellate litigation, “In the 2005 habeas opinion, the court addressed claims by Waidla and another prisoner of due process violations from the prosecution inconsistently contending in separate trials that each defendant had committed the 1988 murder. The court granted habeas relief to the other defendant, but found any due process violation as to Waidla to be harmless.”

The court’s majority put the blame on Waidla’s attorney for “failing to investigate and present mitigation evidence that competent counsel would have discovered.”

“The inconsistent prosecutions didn’t play a part in the Ninth Circuit’s opinion. Instead, the majority concluded that, even under a federal standard of review that is highly deferential to state court decisions, the Supreme Court had “unreasonably applied” law about ineffective assistance of counsel and “could not reasonably have found that counsel’s failures were non-prejudicial,’” said Horvitz & Levy.

The dissenting judge, Circuit Judge Eric D. Miller, didn’t agree.

He asserted, “Waidla has not established either deficient performance or prejudice with respect to any of his claims.” He concluded, “We have repeatedly been reversed for failing to defer to reasonable determinations of state courts under [the statute governing federal review of state court death penalty decisions]. It appears that we have yet to learn the lesson of those cases,” said Horvitz & Levy.

Waidla, who emigrated to the U.S. after serving in the Russian Army and got into a money dispute with someone who had helped him in exchange for home improvement work, was caught after he tried to cross the U.S./Canadian border in 1988. He a weapon and letter that allegedly incriminated him in the hatchet murder of the person he had a dispute with earlier.

He initially invoked his right to counsel during interrogation by a Border Patrol agent, but later waived his rights and made incriminating statements to the Los Angeles Police Department.

According to the account in the court’s record, “At trial, Waidla testified that he was coerced by LAPD detectives, who he said had threatened to hang him if he did not repeat back a confession they fed to him. Familiar with the violent interrogation style of the KGB from personal experience, Waidla said that he believed the threat and did not feel free to deny his guilt. 

“He testified that he had begun hitchhiking to New York before the murder occurred (but) After four days of deliberation, the jury found Waidla guilty of first-degree murder during the course of a burglary and robbery with personal use of a deadly and dangerous weapon, a capital crime.”

The court noted, “Counsel’s penalty phase argument principally pleaded for the jury’s mercy. Counsel’s discussion of Waidla’s struggles in the Soviet Army was limited to his observation that ‘after three weeks in a Russian Army hospital Mr. Waidla was so consumed by a desire for freedom . . . that he risked everything to run.’ 

“Counsel also referenced the limited information available about Waidla’s background and character. He drew the jury’s attention to Waidla’s lack of criminal history and youth. Counsel argued that Waidla had been cooperative with law enforcement. Finally, counsel asked the jury to show Waidla mercy because he had no one who could testify to his character, from which the jury could infer that he was ‘essentially alone in this world.’”

The court added the state “maligned Waidla’s character by portraying him as a deserter from the Soviet Army and as a lazy ‘parasite’ who believed that ‘he deserved to be taken care of,’ citing his refusal to look for work or attend school.

“The State suggested that Waidla had a propensity for violence because he had been willing to harm others during his escape from the Soviet Army if the need arose and because he carried a loaded gun when Border Patrol agents arrested him.”

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