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State v. Carlson

Court of Appeals of Alaska

March 15, 2019

STATE OF ALASKA, Appellant,
v.
JASON LEE CARLSON, Appellee.

          Appeal from the Superior Court Trial Court No. 3AN-07-12263 CI, Third Judicial District, Anchorage, Jack Smith, and Frank A. Pfiffner, Judges.

          James J. Fayette, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellant.

          Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Office of Public Advocacy, Anchorage, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. [*]

          OPINION

          ALLARD JUDGE

         The State appeals the superior court's decision to grant post-conviction relief to Jason Lee Carlson, who was convicted of second-degree murder for killing his best friend, George Featherly. Carlson was convicted following two trials in the superior court. At both of these trials, Carlson was represented by Allen Dayan, a private criminal defense attorney hired by Carlson's parents.

         During the investigation of the homicide, Carlson (who was then seventeen years old) gave conflicting accounts of Featherly's death to the police. Chief among these accounts was Carlson's assertion that Featherly was shot by a black man named "B" or "Bee." But Carlson eventually told Dayan that these earlier accounts were false - that, in truth, Carlson accidentally shot Featherly while he was handling a pistol that Featherly had recently purchased.

         After Carlson told Dayan that he shot Featherly by accident, Dayan arranged a new police interview for Carlson. At this interview, with Dayan's prompting and assistance, Carlson offered this new version of events to the police. (This interview was videotaped and later shown at Carlson's trials.) Despite Carlson's assertion that the killing had been accidental, the State charged him with first-degree murder (i.e., intentionally killing Featherly).

         Then, while Dayan and Carlson were preparing for trial, Carlson told Dayan that the "accidental shooting" version of events was false. Carlson informed Dayan that he intended to take the stand at trial and reaffirm his earlier assertion that Featherly was killed by a black man named B.

         Despite Carlson's recantation of the police confession that Dayan had helped facilitate, Dayan continued to represent Carlson at both ofhis trials. At Carlson's first trial, the jury acquitted him of first-degree murder but was unable to reach a verdict on the charge of second-degree murder. At Carlson's second trial, he was convicted of second-degree murder.

         Carlson later filed an application for post-conviction reliefasserting that he received ineffective assistance of counsel from Dayan. Specifically, Carlson contended that Dayan acted incompetently when he failed to withdraw from the case after it became clear that Carlson intended to take the stand and repudiate the accidental shooting version of events that Dayan had actively facilitated and previously promoted as the truth.

         The superior court ultimately granted post-conviction relief to Carlson. In its order granting relief, the superior court found that Dayan's active participation in Carlson's later repudiated videotaped confession constituted an "actual conflict of interest" that gave rise to a "non-rebuttable presumption of prejudice." The superior court also found that Dayan's failure either to withdraw from Carlson's case, or to at least seek a protective order that would have prevented the jury from knowing about Dayan's involvement in the now-repudiated videotaped confession, constituted ineffective assistance of counsel under Risher v. State.[1]

         The State now appeals the superior court's decision, raising multiple claims of error. In its brief, the State attacks the superior court's analysis as unsupported by the record and legally flawed. For the reasons explained here, we agree with the State that the superior court's conflict analysis is flawed and, in key respects, unsupported by the evidentiary record. We therefore reverse that ruling. We also conclude that there are sufficient questions about the superior court's findings and legal reasoning on the ineffective assistance of counsel claim that a remand for further proceedings on that claim is required.

         The State also raises three additional claims of error on appeal. The State argues first that Carlson's application for post-conviction relief was time-barred, and that the superior court erred when it allowed Carlson to pursue this application. We reject the State's arguments primarily on preservation grounds, and we affirm the superior court's timeliness ruling. The State also argues that Carlson was barred as a matter of law from raising any ineffective assistance of counsel claims against his trial attorney under our decision in Arnett v. State.[2] We disagree with the State's expansive reading of Arnett, and we affirm this aspect of the superior court's decision.

         Lastly, the State argues that the superior court erred when it found that Carlson's appellate attorney was ineffective for failing to raise the issue of Dayan's effectiveness in Carlson's direct appeal. Carlson concedes that this aspect of the superior court's ruling is erroneous. This concession is well taken, and we reverse this ruling.[3]

         Factual background and prior proceedings

         The police investigation

         In the late evening of September 24, 1998, police found a vehicle parked on the side of King Street in Anchorage. The car's engine and headlights were running and the parking brake was engaged. Both front doors were open. Inside the car, the police discovered the body of seventeen-year-old George Featherly. Featherly's body was in the driver's seat, covered up by a jacket. Featherly had been killed by a single close-range gunshot to the back of his head. According to the medical examiner's testimony at trial, the gun must have been fired only "fractions of an inch" from Featherly's head.

         During the initial investigation into Featherly's death, seventeen-year-old Jason Carlson-Featherly's best friend-came under suspicion. Carlson initially told police that he had lost track of Featherly at the nearby Dimond Center Mall around 7:30 p.m. on the day of the shooting. After the mall security tapes failed to corroborate Carlson's story, Carlson admitted to the police that he had been in Featherly's car when the shooting took place. Carlson told the police that he and Featherly had left the Dimond Center to purchase a gun from a man named "B" or "Bee" - and that B, after attempting to rob Featherly, shot him in the back of the head while Featherly was driving. According to Carlson's account, the car swerved, but Carlson was able to reach over, steer the car to the side of the road, and engage the emergency brake. As this was happening, another car going the other direction passed by.

         In this second version of events, Carlson claimed that, after the shooting, he grabbed Featherly's Makarov pistol and shot B. Carlson also claimed that he jumped into the back seat and struggled with B. (Carlson would later recant this portion of his statement when he testified at his two trials.) Carlson also initially denied covering Featherly's body with the jacket, suggesting to the police that B must have done that.

         Carlson told the police that B fled soon after the shooting, taking the murder weapon with him. Carlson then also fled, taking Featherly's Makarov pistol with him. Carlson told the police that when he got home, he hid the Makarov pistol in his house and he called Featherly's pager in an attempt to create a false alibi for himself. (The police were already aware of Carlson's call to Featherly's pager, and the police subsequently located the Makarov pistol in Carlson's house inside of a stereo speaker where Carlson had told the police he hid it.)

         In the next few weeks, the police investigated Carlson's "B" version of events, but they were unable to find anyone who matched Carlson's description of B, nor anyone who had sought treatment for a gunshot wound that night. In their subsequent interviews with Carlson, the police were openly skeptical of this version of events. In one interview, the lead investigator, Detective Larry Arend, urged Carlson to tell the truth about what happened. Arend also told Carlson that it would be a "whole new ballgame" if Carlson had accidentally shot Featherly.

         On October 20 Carlson's parents retained private criminal defense attorney Allen Dayan to advise Carlson in connection with the police investigation. Carlson at first told Dayan the same thing he told the police - that B shot Featherly. Dayan hired private investigators to try to locate B, and he passed on any leads to the police.[4]

         A few weeks later, on November 6 Carlson's mother found what appeared to be a death threat outside Carlson's window. The death threat was composed ofcut-out magazine letters that read "U will d [picture of an eye] 2nite II" - i.e., "you will die tonight too." Carlson's mother gave the death threat to Dayan, who turned it over to the police shortly before Carlson's first trial - in early February, 1999. After the police received the death threat, they subjected it to forensic testing and discovered Carlson's fingerprints in the tape that was used to attach the letters to the paper. At trial, Carlson admitted that he fabricated the death threat note. He testified that he felt that the police were not doing enough to find B, and he hoped that the fake death threat would prompt them to step up their investigation.

         On the same day that Carlson's mother found the fabricated death threat, the police located the driver of the oncoming vehicle that passed by Featherly's car after Featherly was shot. The driver, Heather Dickens, later testified at both of Carlson's trials.

         In her trial testimony, Dickens described seeing Featherly's car erratically swerve, and she also described driving past the car and looking into the car as she passed. As Dickens looked into the car, she saw one man, who "looked like he was passed out," sitting in the driver's seat "with his head sort of back" and his hands on the steering wheel. She also saw another man with his head by the driver's right shoulder. It looked to Dickens as if this second man was leaning forward between the front seats with his body partially in the back seat.

         Dickens admitted that she could not see fully into the back seat of the car, but she was certain that there was nobody in the front passenger seat, and that there were only two men in the car. Dickens was also "positive" that the man in the back seat was not black. (Carlson is not black.)

         After interviewing Dickens on November 6, 1998, Detective Arend called Dayan and told him that the police had an eyewitness, and that the eyewitness saw only two men in the car and did not see any black man in the car. Arend also told Dayan that the district attorney's office was considering filing first-degree murder charges against Carlson.

         Dayan informed Carlson of what he had learned from the detective. According to Dayan's testimony at the later post-conviction relief evidentiary hearing, Carlson responded to this information by asking, "What if it [i.e., the shooting] was an accident?" In response, Dayan explained to Carlson that if he shot Featherly accidentally, he could face a charge of manslaughter or criminally negligent homicide, but that either of these charges was much less serious than the first-degree murder charge that the State was currently considering. According to Dayan, after he gave Carlson this explanation, Carlson told Dayan that the B story was not true, and that the truth was that Carlson shot Featherly by accident. Carlson also told Dayan that he now wanted to tell the police the truth.

         On November 9 Dayan contacted Detective Arend and told him that Carlson now admitted that he had been alone in the car with Featherly, and that he accidentally shot Featherly. Dayan told Arend that Carlson wanted to participate in another police interview, where he would confess to accidentally killing Featherly.

         That same day, Dayan accompanied Carlson and his family to the police station - but, upon their arrival, Dayan requested that the interview be delayed for one more day. According to Arend's later trial testimony (which was not objected to by Dayan), Dayan told Arend that he "wanted to make sure that he had all ofhis T s crossed [and] Fs dotted," and also to make sure that "what [Carlson] was telling him was the truth." Dayan told Arend that he (Dayan) was "pretty confident... that what [Carlson] had told him was the truth, but he just wanted to make sure of it."

         The next day, November 10, Dayan and Carlson returned to the police station for the interview. Arend conducted this interview, which was videotaped and audiotaped.

         At the beginning of the interview, Detective Arend advised Carlson ofhis Miranda rights. Carlson waived his Miranda rights and confirmed that he was participating in the interview voluntarily, after consulting with his attorney (Dayan), who was present throughout the interview.

         Carlson then proceeded to offer a new "accidental shooting" account of what happened. According to Carlson's new version of events, Carlson and Featherly were alone in Featherly's car when the shooting occurred. Carlson was sitting in the back seat and Featherly was driving on an unpaved section of King Street that was filled with potholes. Featherly had recently bought a gun, and Carlson was inspecting this gun, which he did not realize was loaded. Carlson told Arend that he was "screwing around" with the gun and pointing the gun at Featherly when the gun suddenly went off, killing Featherly. Carlson also admitted that his finger was on the trigger when the gun discharged.[5]

         Carlson told Arend that he panicked after the shooting. He admitted to Arend that he wiped down the car for fingerprints, and he also admitted (contrary to his prior statements) that he covered Featherly's body with a jacket so that it could not be easily seen. Carlson then fled with Featherly's two guns, throwing the gun that killed Featherly into a nearby creek and hiding the Makarov pistol in his home. The police later looked for a gun in the creek, but they could not find one.

         Both the audio recording and the video recording of this November 10 confession show that Dayan was an active participant in the confession. At various points during the interview, Dayan encouraged Carlson to provide more details about this new version of events. Dayan also vouched for Carlson's claim that it was Carlson's habit to sit in the back seat even when no one was in the front passenger seat. In the interview, Dayan stated that he "[thought] the evidence will bear it out" that this was "just [Carlson's] habit and style; he likes to ride in the back seat."

         Dayan was also an enthusiastic participant in the reenactment suggested by Detective Arend. Dayan agreed to play the role of Featherly in the reenactment. On the videotape portions of the interview shown to the jury at Carlson's second trial, Dayan can be seen scooting his chair around so that it is positioned in front of Carlson's chair, as though Dayan was sitting in the driver's seat and Carlson was in the back seat. Dayan can also be seen handing Carlson his cell phone and urging him to use the phone as a prop for the gun that killed Featherly. In the video, Carlson handles the "gun," but he does not place it directly against Dayan's head.

         Following the videotaped confession, Carlson was allowed to leave the police station. But the next day Carlson was arrested and charged with first-degree murder, second-degree murder, and multiple counts of evidence tampering and weapons misconduct.

         The grand jury later indicted Carlson on the following charges: one count of first-degree murder (for intentionally shooting Featherly); an alternative count of second-degree murder (for knowingly shooting Featherly under circumstances manifesting extreme indifference to human life); one count of evidence tampering for making the fake alibi phone call to Featherly's pager; a second count of evidence tampering for wiping off the fingerprints from the car; a third count of evidence tampering for laying Featherly's body on the seat and covering it with the jacket; a fourth count of evidence tampering for disposing of the murder weapon; a fifth count of evidence tampering for creating the fake death threat; one count ofthird-degree weapons misconduct for possessing the murder weapon (a concealable firearm) after having been adjudicated a delinquent minor for a crime that would have been a felony if Carlson had been an adult; and a second count of third-degree weapons misconduct for possessing Featherly's Makarov pistol after having been adjudicated a delinquent minor for a crime that would have been a felony if Carlson had been an adult.[6]

         Carlson's recantation of the "accidental discharge" version of events

         Approximately one month after his arrest (i.e., sometime in December 1998), Carlson called Featherly's father from jail. In his conversation with Featherly's father (which was recorded by corrections personnel), Carlson said that it was not true that he had shot Featherly, and he declared that he had given a false confession to the police. Carlson also falsely claimed that he had been receiving death threats. (Carlson later admitted at trial that his statement to Featherly's father about "death threats" was a reference to the fake death threat that he himself had created.)

         Around this same time, Carlson called Dayan and told him that the accidental shooting story was not true - that, instead, the truth was his earlier assertion that B shot Featherly. Dayan testified at the post-conviction relief evidentiary hearing that Carlson had previously been very close to Featherly's family, and that Carlson was upset that Featherly's family blamed him for their son's death. The testimony at trial was that the two were "like brothers," frequently staying over at each other's houses.

         Carlson told Dayan that, if his case went to trial, he intended to take the stand and testify that his videotaped confession was false and that B killed Featherly. However, with Carlson's permission, Dayan continued to try to negotiate a plea agreement with the State.

         The plea negotiations ultimately broke down sometime in early February 1999, at which point it became clear that the case was headed to trial and that Carlson would take the stand and testify that B shot Featherly - thereby repudiating the videotaped confession that Dayan had arranged for and actively participated in.

         Dayan did not move to withdraw as Carlson's counsel or take any steps to address the fact that the jury would likely become aware that the attorney who was representing Carlson at trial had previously promoted Carlson's accidental discharge version of events as the truth. According to Dayan's testimony at the post-conviction relief evidentiary hearing, it never occurred to him to withdraw, nor did he see any reason to believe that Carlson would be better served by having a different attorney represent him at trial. Dayan also defended his performance as Carlson's trial attorney, and argued that the criticisms now being leveled against him were unfair.

         Carlson's first trial

         At Carlson's first trial, the prosecution's primary theory was that Carlson intentionally shot Featherly over a dispute involving money and/or a girl. In support of this theory, the prosecutor introduced evidence that Featherly owed Carlson $30 and that Featherly was dating (or possibly engaged to) a girl that Carlson used to date more than a year earlier.

         During his opening statement, the prosecutor played portions of the videotape of the November 10 interview in which Carlson confessed to accidentally shooting Featherly. And in the State's case-in-chief, the prosecutor introduced the complete audio recording of this interview into evidence, but the prosecutor failed to introduce the corresponding videotape of the interview into evidence. This oversight was discovered when, during jury deliberations, the jurors asked to re-watch the portions of the videotape that they had been shown during the prosecutor's opening statement. The trial judge told the jurors that, while the audio recording was available, the videotape had not been introduced into evidence and was therefore unavailable for their review.

         Carlson took the stand at his first trial and, as he had previously informed Dayan he would do, Carlson testified that B shot Featherly. Carlson admitted, however, that it was not true that he shot B in return. Carlson told the jury that he had lied about shooting and struggling with B because he felt that it was "cowardly" for him not to have done so, and he felt "guilty" that he had done nothing to the man who killed his best friend.

         Carlson also admitted that he had repeatedly lied about what happened, starting with his initial interview with the police where he claimed that he had not been present when Featherly was killed. Carlson testified that he later falsely confessed to accidentally shooting Featherly because he felt overwhelmed by the police investigation and he "just wanted everybody off my back." Carlson also stated that he thought that he would not get into any trouble if he claimed to have accidentally shot Featherly.

         Carlson admitted that he engaged in most of the conduct that formed the basis for the evidence tampering and weapons misconduct charges. That is, Carlson admitted to making the fake alibi call to Featherly's pager, wiping down the car for fingerprints, covering Featherly's body with a coat, possessing the Makarov pistol, and making the fake death threat note that his mother found outside his window. However, Carlson denied that he ever possessed the gun that was used to kill Featherly, and he denied throwing that gun into the creek - conduct that was the basis for one of the weapons misconduct charges and one of the evidence tampering charges.

         During his cross-examination of Carlson, the prosecutor focused primarily on the number of different lies that Carlson had told, and the prosecutor had Carlson admit that many ofhis prior statements were lies. Dayan subsequently argued in closing argument that, while the State had proved that Carlson was a liar, the State had not proved beyond a reasonable doubt that Carlson was a murderer.

         After deliberating for several days and requesting multiple playbacks of the testimony (including the request to view the videotape of the November 10 confession that was denied because the videotape was not in evidence), the jury announced its verdicts. The jury acquitted Carlson of first-degree murder, rejecting the prosecutor's theory that Carlson had intentionally killed his best friend while his friend was driving the car Carlson was riding in. However, the jury could not reach a unanimous verdict on the second-degree murder charge, and a mistrial was declared on that charge.[7]

         The jury convicted Carlson of the four evidence tampering charges that he had admitted during his trial testimony, as well as the weapons misconduct charge related to the Makarov pistol, which Carlson had also admitted.[8] But the jury was unable to reach a verdict on the evidence tampering and weapons misconduct charges that Carlson had denied - charges that would have required the jury to find that Carlson personally handled the gun that killed Featherly.

         According to Dayan's testimony at the post-conviction relief evidentiary hearing, both he and Carlson's family were "surprised" and "elated" by the jury's verdicts at Carlson's first trial. Dayan testified that it was clear from the jury's behavior during closing argument that his defense strategy of arguing that Carlson was a liar but not a murderer had resonated with the jurors.

         Carlson's second trial

         At the second trial, Carlson gave substantially the same testimony, although he provided some additional detail about why he told the police that he accidentally shot Featherly. According to Carlson, he falsely confessed to accidentally shooting Featherly because nobody would believe the truth - i.e., that B shot Featherly. Carlson testified that Dayan told him that nobody would believe that B shot Featherly because Carlson had already "lied so much." Carlson also testified that Detective Arend's statement about an accidental shooting being a "whole new ballgame" led him to believe that he would not get into much trouble, if any, ifhe falsely told the police that the shooting was an accident.

         The main difference between the two trials, however, was the shift in the prosecution's theory of the case. With first-degree murder no longer an option, the prosecutor argued that Carlson had told a basically truthful version of events during the November 10 confession - and that Carlson's accidental shooting of Featherly constituted second-degree murder because it manifested extreme indifference to the value of human life. The prosecutor told the jury, "Jason Carlson did the stupidest thing he's ever done in his life [when he held] a gun he didn't know ... was loaded to the back of George Featherly's head. The gun went off, and he's been lying about it ever since."[9]

         At various points during the second trial, the prosecutor referred to Dayan's presence at the November 10 police interview. In closing argument, the prosecutor told the jury:

[Y]ou've got the interview on the [10th] of November. It's on the videotape. This is in the presence of Mr. Dayan. With his own attorney there. After presumably he's had all the options laid out.... Look, any promises, any threats? No.

         In his closing argument to the defense, Dayan continued to argue that the State had proved Carlson was a liar but had failed to prove that he was a murderer. Dayan's closing argument also focused on various discrepancies in Heather Dickens's testimony, including the fact that she did not have a full view of the back seat. According to Dayan, what Dickens actually saw was Carlson after he moved out of the front seat so that he could grab the steering wheel after B shot Featherly.

         Lastly, Dayan addressed the reasons why Carlson would falsely confess to accidentally shooting Featherly. Dayan emphasized Carlson's youth, and susceptibility to pressure, arguing that Carlson was overwhelmed by the police investigation. Dayan also emphasized that Carlson was easily influenced by the adults around him - including both Detective Arend and Dayan himself.

         Following its deliberations, the second jury convicted Carlson of second-degree murder and the two remaining evidence tampering and weapons misconduct charges.

         Carlson's sentencing

         The trial judge sentenced Carlson to 50 years' imprisonment with 10 years suspended for the second-degree murder conviction. Carlson's composite sentence for the murder and the evidence tampering and weapons misconduct charges was 64 years' imprisonment with 17 years suspended (47 years to serve).

         During the sentencing hearing, the trial judge expressly found that Carlson had perjured himself at his two trials. The judge declared that Carlson's story about a black man named B shooting Featherly was "patently false":

I listened to it twice. I don't believe a word of it. There wasn't a B present. B didn't shoot anybody, and Mr. Carlson did not shoot B. He testified [that] all those things occurred, but they didn't, and he did commit perjury in telling that story.

         Carlson's direct appeal and subsequent federal litigation

         Carlson appealed his murder conviction and his sentence. This Court affirmed Carlson's conviction and sentence on January 27, 2006.[10] The Alaska Supreme Court denied Carlson's petition for hearing on May 24, 2006.

         Around the time that the Alaska Supreme Court denied Carlson's petition for hearing, a private criminal defense attorney from North Carolina contacted the assistant public defender who represented Carlson in his direct appeal. The North Carolina attorney had seen this Court's decision on a national blog, and he volunteered to represent Carlson in a petition for writ of certiorari to the United States Supreme Court raising a Blakely sentencing issue.[11]

         Carlson's public defender assisted the North Carolina attorney in contacting Carlson and having the North Carolina attorney take over the representation. But neither the public defender nor the North Carolina attorney advised Carlson that he had only one year to seek post-conviction reliefin state court if he wanted to raise claims of ineffective assistance of counsel against Dayan or against his appellate attorney.[12] In addition, no one advised Carlson that the federal litigation with the North Carolina attorney would not toll this deadline.

         The United States Supreme Court denied Carlson's petition for writ of certiorari in October 2006. The North Carolina attorney then assisted Carlson in filing a petition for writ of habeas corpus in the federal district court, attempting to raise ineffective assistance of counsel claims that could only be raised if Carlson had first exhausted his post-conviction relief remedies in state court.[13] A federal assistant public defender was appointed to represent Carlson in his federal habeas petition. That attorney requested that the federal district court stay the proceedings until Carlson had the opportunity to exhaust his state post-conviction relief remedies. The federal district court granted this request.

         Carlson's application for post-conviction relief

         On December 10, 2007 - six and one-half months after the statutory deadline for seeking post-conviction relief- Carlson filed a pro se post-conviction relief application in the superior court, raising various claims of ineffective assistance of counsel against Dayan. The superior court appointed counsel to represent Carlson and to address the late filing of the application. Carlson's post-conviction relief attorney filed a motion to accept the late-filed application, arguing that the delay had been caused by ineffective assistance of Carlson's state and federal appellate counsel.[14] Superior Court Judge Jack Smith granted this motion over the State's objection. (This ruling is challenged on appeal and discussed later in our opinion.) The case then proceeded to a litigation of the merits of Carlson's underlying post-conviction relief claims.

         In his amended application for post-conviction relief, Carlson raised three primary claims of ineffective assistance of counsel against Dayan.[15]

         In his first claim, Carlson alleged that Dayan was ineffective for advising Carlson to participate in the videotaped November 10 interview with the police without any guarantees of confidentiality or promises of leniency in place. This claim was dismissed by Judge Smith on the ground that November 10 interview occurred before formal charges were filed, and the Sixth Amendment right to effective assistance of counsel does not attach until criminal charges have been filed.[16] Carlson has not cross-appealed the dismissal of this claim, and it is therefore not before us in this appeal.

         In his second claim, Carlson alleged that Dayan was ineffective for failing to withdraw from his case once it became clear that Carlson intended to testify at trial that B shot Featherly, and that Carlson intended to repudiate the accidental shooting confession that Dayan had participated in and previously promoted as the truth. Carlson argued that any competent attorney under these circumstances would have withdrawn from his case or, at the very least, would have moved for a protective order to prevent the jury from learning about the attorney's involvement in the earlier, now-repudiated confession.

         Lastly, Carlson alleged that Dayan's involvement in the November 10 interview constituted an "actual conflict of interest" that adversely affected Dayan's performance at trial and which required the court to presume prejudice and reverse Carlson's convictions.

         Carlson's case proceeded to a three-day evidentiary hearing on the latter two claims, which was held in front of Superior Court Judge Frank A. Pfiffner.

         At this evidentiary hearing, Carlson presented an expert witness, long-time criminal defense attorney, John Murtagh. Murtagh testified that, in his opinion, Dayan acted incompetently in failing to either withdraw or move for a protective order. Murtagh acknowledged, however, that trying to redact all indications of Dayan's presence from the November 10 videotape would be "an elaborate project" - a project that Murtagh did not think "would work well" or provide "a complete solution." Murtagh therefore testified that he felt "very strongly" that Dayan should have withdrawn as Carlson's trial counsel. According to Murtagh, if Carlson had had a different trial attorney - one who "challeng[ed] the entire procedure of the [November 10] interview" and "develop[ed] in some exquisite detail Mr. Carlson's psychological mental state," this would have made it a ...


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