Bemore v. Chappell

Fraudulent misappropriation of defense funds does not create a conflict of interest absent a showing that the misuse caused counsel to investigate the case less thoroughly than counsel otherwise would.

Terry Bemore was convicted of murder and sentenced to death by a single jury. In a separate trial, Bemore’s co-defendant was convicted of murder and received a twenty-five years to life sentence. Bemore filed a petition for habeas corpus relief alleging that his lawyers were constitutionally ineffective because they, among other things, created a conflict of interest by diverting defense funds for personal use, for presenting a weak alibi defense during the guilt phase, and for failing to present evidence of mental impairments during the penalty phase. The Ninth Circuit held that fraudulent misappropriation of defense funds does not create a conflict of interest absent a showing that the misuse caused counsel to investigate the case less thoroughly than he otherwise would. The panel held that although counsel’s use of the alibi defense and failure to investigate potential alternatives did amount to constitutionally deficient representation, the deficiency did not create the prejudice required by the Strickland v. Washington standard. Finally, the panel held that failure to pursue mitigating evidence related to mental health was constitutionally deficient and substantially prejudiced the penalty phase. The panel found that had that mitigating evidence been presented, it was possible Bemore would not have received the death penalty. AFFIRMED in Part, REVERSED in Part, and REMANDED.