Robert A. McClure v. Frank Thompson

323 F.3d 1233, 2003 Cal. Daily Op. Serv. 2822, 2003 Daily Journal DAR 3645, 2003 U.S. App. LEXIS 6304, 2003 WL 1734170
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 2, 2003
Docket01-35593
StatusPublished
Cited by75 cases

This text of 323 F.3d 1233 (Robert A. McClure v. Frank Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert A. McClure v. Frank Thompson, 323 F.3d 1233, 2003 Cal. Daily Op. Serv. 2822, 2003 Daily Journal DAR 3645, 2003 U.S. App. LEXIS 6304, 2003 WL 1734170 (9th Cir. 2003).

Opinions

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge FERGUSON.

OPINION

WILLIAM W. FLETCHER, Circuit Judge:

Oregon state prisoner Robert A. McClure appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury trial conviction for three aggravated murders. McClure’s original defense attorney, Christopher Mecca, placed an anonymous telephone call to law enforcement officials directing them to the locations of what turned out to be the bodies of two children whom McClure was ultimately convicted of killing. The district court rejected McClure’s arguments that the disclosure constituted ineffective assistance of counsel, holding there was no breach of the duty of confidentiality and no actual conflict of interest. We affirm.

I. Background

A. Offense, Arrest and Conviction

On Tuesday, April 24, 1984, the body of Carol Jones was found in her home in Grants Pass, Oregon. She had been struck numerous times on the head, arms and hands with a blunt object. A gun cabinet in the home had been forced open and a .44 caliber revolver was missing. Two of Jones’ children — Michael, age 14, and Tanya, age 10 — were also missing. The fingerprints of Robert McClure, a friend of Jones, were found in the blood in the home. On Saturday, April 28, McClure was arrested in connection with the death of Carol Jones and the disappearance of the children.

That same day, McClure’s mother contacted attorney Christopher Mecca and asked him to represent her son. As discussed in more detail below, sometime in the next three days, under circumstances described differently by McClure and Mecca, McClure revealed to Mecca the separate remote locations where the children could be found. On Tuesday, May 1, Mecca, armed with a map produced during his conversations with McClure, arranged for his secretary to place an anonymous phone call to a sheriffs department telephone number belonging to a law enforcement officer with whom Mecca had met earlier.

Later that day and the following day, sheriffs deputies located the children’s bodies, which were in locations more than 60 miles apart. The children had each died from a single gunshot wound to the head. Mecca then withdrew from representation. On May 3, McClure was indict[1236]*1236ed for the murders of Carol Jones and her children. At trial, the prosecution produced extensive evidence that stemmed from the discovery of the children’s bodies and introduced testimony regarding the anonymous phone call. McClure was found guilty of all three murders and was sentenced to three consecutive life sentences with 30-year mínimums. On direct appeal, his conviction was affirmed without opinion. State v. McClure, 80 Or.App. 461, 721 P.2d 482 (1986), rev. denied, 302 Or. 158, 727 P.2d 128 (1986).

B. Disclosure of the Children’s Whereabouts

The parties agree that Mecca and McClure met at the jail and spoke on the telephone on a number of occasions between April 28 and May 1. However, the substance of the conversations between McClure and Mecca are the subject of significant dispute.

Mecca recorded his account in notes that he wrote immediately after the children’s bodies were discovered. Mecca also gave deposition testimony for McClure’s state post conviction proceeding, submitted an affidavit prior to McClure’s federal habeas proceeding, and gave testimony at the federal district court evidentiary hearing in the habeas proceeding. In his notes, Mecca wrote that McClure had initially claimed that he was “being framed” for the murder, but that he was nervous about his fingerprints being in the house. He had asked Mecca to help him remove some other potential evidence, which Mecca declined to do. According to the notes, on the Sunday night after McClure’s Saturday arrest, Mecca received a “frantic phone call” from McClure’s sister, who was convinced that McClure had murdered Jones, but had reason to believe that the children were alive and perhaps “tied up or bound someplace.” In response, Mecca set up a meeting with McClure, his sister and his mother at the jail, at vyhich McClure’s sister “directly confronted [McClure] and begged him to divulge information about the whereabouts of the kids.” McClure and his sister discussed how McClure sometimes did “crazy things” when he was using drugs, but McClure strongly maintained his innocence as to Carol Jones’ murder and the children’s disappearance.

According to his notes, when Mecca next spoke with McClure on Monday, McClure was less adamant in his denial. Mecca described how, when they met on Monday afternoon, McClure began to tell him of his “sexual hallucinations and fantasies” involving young girls and about “other situations that happened in the past ... involving things he would do while under the influence of drugs.” “It was at that time,” Mecca wrote, “when I realized in my own mind that he had committed the crime and the problem regarding the children intensified.” Mecca wrote that he “was extremely agitated over the fact that these children might still be alive.”

After a Monday night visit to the crime scene, Mecca returned to the jail to speak with McClure again, at which time he “peeled off most of the outer layers of McClure and realized that there was no doubt in my mind that he had ... killed Carol Jones.” McClure told Mecca he wanted to see a psychiatrist, then launched into “bizarre ramblings.” “[E]ach time as I would try to leave,” Mecca recalled in his notes, “[McClure] would spew out other information, bits about the children, and he would do it in the form of a fantasy.” Mecca wrote that he “wanted to learn from him what happened to those children.” He told McClure “that we all have hiding places, that we all know when we go hiking or driving or something, we all remember certain back roads and remote places,” and that McClure “related to me ... one place where a body might be” and then “de[1237]*1237scribed [where] the other body would be located.” Mecca wrote that he “wasn’t going to push him for anything more,” but “when I tried to leave, he said, and he said it tentatively, ‘would you like me to draw you a map and just give you an idea?’ and I said “Yes’ and he did[.]” Mecca recorded that “at that time, I felt in my own mind the children were dead, but, of course, I wasn’t sure.”

Very late on Monday evening, McClure telephoned Mecca at home and said, “I know who did it.” Mecca recorded in his notes that the next morning he went to meet with McClure, and asked him about this statement. McClure told Mecca that “Satan killed Carol.” When Mecca asked, “What about the kids?” McClure replied, “Jesus saved the kids.” Mecca wrote in his notes that this statement “hit me so abruptly, I immediately assumed that if Jesus saved the kids, that the kids are alive[.]” Mecca wrote that he “kind of felt that [McClure] was talking about a sexual thing, but, in any event, I wasn’t sure.”

Mecca’s notes indicate that on Monday, before McClure made the “Jesus saved the kids” comment, and again on Tuesday, immediately after the meeting at which he made that comment, Mecca had conversations with fellow lawyers, seeking advice regarding “the dilemma that [he] faced.” After the second of these conversations, which took place Tuesday morning, Mecca arranged for a noon meeting with the un-dersheriff and the prosecutor.

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Bluebook (online)
323 F.3d 1233, 2003 Cal. Daily Op. Serv. 2822, 2003 Daily Journal DAR 3645, 2003 U.S. App. LEXIS 6304, 2003 WL 1734170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-a-mcclure-v-frank-thompson-ca9-2003.