FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRANKLIN MURDOCH, JR., 

Petitioner-Appellant, No. 05-55665

v. D.C. No.

ROY CASTRO, Warden; BILL  CV 99-06900

LOCKYER, Attorney General, RSWL

Attorney General of the State of OPINION California,

Respondents-Appellees. 

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted

October 26, 2006—Pasadena, California

Filed June 12, 2007

Before: Myron H. Bright,* A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Bright

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation. 

7133
COUNSEL

Seymour I. Amster, Van Nuys, California, for the petitionerappellant. 

Rama R. Maline, Deputy Attorney General, Los Angeles, California, for the respondent-appellee. 

OPINION

TASHIMA, Circuit Judge: 

For the second time, Charles Murdoch, a California state

prisoner, appeals from the judgment of the district court denying his petition for a writ of habeas corpus. In his previous

appeal, we held that the exclusion of a privileged letter could

violate a defendant’s Sixth Amendment right to confrontation

and cross-examination, depending on the content of the letter.

Murdoch v. Castro, 365 F.3d 699, 705 (9th Cir. 2004)

(“Murdoch I”). We therefore remanded for the district court

to review the letter and to determine whether the attorneyclient privilege must yield to the petitioner’s right of crossexamination. Id. at 706. On remand, after reviewing the letter,

the district court held that there was no constitutional violation. We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we affirm. 

I. BACKGROUND

On May 17, 1983, four men robbed the Horseshoe Bar in

Long Beach, California. In the course of the robbery, one

7136 MURDOCH v. CASTRO
bystander was shot and killed; another was stabbed and

severely wounded. The men recovered approximately $200

from the cash register and left behind a fingerprint. The crime

went unsolved until 11 years later, when advances in fingerprint technology enabled police to identify Dino Dinardo as

one of the perpetrators. 

Officers arrested Dinardo on June 30, 1994, in Berkeley,

California. When first questioned, Dinardo denied any

involvement in the crime, but later recanted, admitting his

involvement in the robbery, and identifying Murdoch as one

of his accomplices. Both Dinardo and Murdoch were charged

with murder accompanied by special circumstances. 

Dinardo was tried first. At a suppression hearing that preceded his trial, Dinardo testified that his confession to the

Long Beach police had been coerced, and that he had given

the confession in exchange for a promise that he would be

released to see his wife and daughter. Dinardo was convicted

and was sentenced to 25 years’ to life imprisonment. At sentencing, the judge suggested to Dinardo that his sentence

could be reduced were he to testify against Murdoch. Dinardo

agreed and received in return a reduction of his conviction to

voluntary manslaughter and a reduced sentence of 12 years’

imprisonment. 

Dinardo was a key witness at Murdoch’s trial. He testified

that, in 1983, Murdoch had approached him “to do a job” and

that the two of them, together with two other men, robbed the

Horseshoe Bar. According to Dinardo, when they entered the

bar, Murdoch carried a .22 caliber rifle and announced loudly,

“Don’t nobody move. This is a stick-up.” Dinardo took this

as his cue to empty the cash register. He fumbled with the

buttons on the register, heard a gunshot, emptied the register,

and ran out the back door, joining the other two men in the

getaway car, with Murdoch joining them about a minute later.

He recalled seeing Murdoch in possession of the rifle both in

the bar and in the car. Dinardo testified that the first time he

MURDOCH v. CASTRO 7137
learned that someone had been shot in the robbery was the

day of his arrest, 11 years after the crime. 

During Murdoch’s trial, Murdoch’s attorney, Dinardo’s

attorney, the prosecutor, and the presiding judge discussed a

letter addressed to Dinardo’s former counsel. The letter was

first brought to the court’s attention by the prosecutor, who

indicated that in her interviews of Dinardo, he told her of the

existence of a letter in which he, Dinardo, stated that he was

coerced by the police into implicating Murdoch in the crime.

Dinardo’s new counsel asserted the attorney-client privilege

and work-product doctrine as grounds for refusing to disclose

the letter. The court concluded that Dinardo’s letter to his former counsel was protected by the attorney-client privilege and

thus could not be used, on cross-examination, to impeach

Dinardo. 

Although Dinardo was not cross-examined about the letter,

Murdoch’s counsel succeeded in eliciting testimony that challenged Dinardo’s credibility as a witness. Dinardo testified

that he had been convicted of the same murder for which

Murdoch was now being tried and that by testifying in Murdoch’s trial, he would “get out in about five years” rather than

21 or more years. He admitted that when he was initially

questioned by the police, he had lied and denied that he had

ever been inside the Horseshoe Bar. He admitted that he

would have done “whatever it took” to get out of custody and

be reunited with his daughter. He also testified to convictions

for grand theft in 1982 and petty theft in 1984. On re-direct

examination by the prosecutor, Dinardo testified that during

the police questioning, he named a “Charles or Chuck” as

someone else involved in the crime, but he could not remember the last name. He was shown photographs at the end of

the interview, and he identified Murdoch as one of his accomplices. On re-cross, he stated that he had testified in his own

trial that his confession had been coerced. He also admitted

that, had the fingerprints not identified him as one of the rob7138 MURDOCH v. CASTRO
bers, he would have continued to lie to the police about his

involvement. 

In addition to Dinardo, other witnesses from the Horeshoe

Bar testified and provided in-court identification of Murdoch.

The bartender, Dyanne Spence, described looking into Murdoch’s eyes down the barrel of a rifle pointed at her face.

“He’s been scaring me for years,” she said. She also testified

that she had identified Murdoch at a live lineup at the county

jail in 1994 and that she was sure “beyond a shadow of a

doubt” that Murdoch had committed the crime. 

Murdoch was convicted of first-degree murder with a

robbery-murder special circumstance, and sentenced to life

imprisonment without parole. The California Court of Appeal

affirmed the conviction, and denied Murdoch’s petition for a

writ of habeas corpus. The California Supreme Court denied

Murdoch’s petition for review. 

Murdoch then filed a federal petition for a writ of habeas

corpus, which the district court dismissed. On appeal, we

vacated the order denying Murdoch’s habaeas petition and

remanded the case to the district court stating:

Today, we address a situation where a substantial

showing has been made that, depending upon the

content of Dinardo’s letter, the Confrontation Clause

and attorney-client privilege are potentially at odds

— a set of facts the Supreme Court has not yet

examined. Its precedents, however, clearly provide

that evidentiary privileges or other state laws must

yield if necessary to ensure the level of crossexamination demanded by the Sixth Amendment.

Murdoch I, 365 F.3d at 702. We concluded that if the contents

of Dinardo’s letter “are as generally described by the prosecutor and as Murdoch believes,” then Murdoch “has arguably

met his burden” of showing that the jury might have received

MURDOCH v. CASTRO 7139
a significantly different impression of the witness’ credibility

had Murdoch been able to pursue his proposed line of cross

examination. Id. at 705. General impeachment for bias implicated Dinardo’s reliability to a lesser extent than actual statements inconsistent with his testimony, such as those which the

letter purportedly contained. Id. Without knowing the contents of the letter, however, we could not make a determination of whether Murdoch’s confrontation rights had been

violated. We accordingly remanded the case to the district

court with instructions that the court obtain the letter, inspect

it in camera, and determine whether the state court’s decision

to deny Murdoch access to the letter violated Murdoch’s Sixth

Amendment right of confrontation. Id. at 706. 

On remand, the magistrate judge, in his report and recommendation, began from the premise that “[e]ssentially, the

Ninth Circuit held that the attorney-client privilege might

have to yield in a particular case if the right of confrontation

would be violated by enforcing the privilege.” The report

addressed four issues: (1) whether the contents of the letter

were examined by the state courts during the petitioner’s postconviction proceedings; (2) whether the state courts weighed

the probative value of the letter and petitioner’s right to confront witnesses against Dinardo’s attorney-client privilege; (3)

whether weighing the rights at stake would indicate a constitutional violation; and, if so, (4) whether the violation represented harmless error. 

Regarding the first two issues, the magistrate judge concluded that although the state courts had read the contents of

the letter, their decisions were “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,”

within the meaning of 28 U.S.C. § 2254(d)(1), in that they

failed to perform any balancing of Murdoch’s Sixth Amendment rights against the privilege. 

The report next examined the contents of the letter to determine whether a constitutional violation had occurred. It con7140 MURDOCH v. CASTRO
cluded that the letter’s intrinsic probative value was low,

given that of the four factual assertions in the letter, “trial testimony rebutted the first three, and half of the fourth.” This

observation segued into a discussion of Murdoch’s rights to

cross-examine, which in turn relied on an analysis of the probative value of the letter. The magistrate judge summarized

the contents of the letter as asserting the following facts: (1)

After Dinardo’s arrest in Berkeley, Long Beach Police Detective Pavek coerced a statement from Dinardo by promising

not to charge Dinardo in exchange for Dinardo’s statement;

(2) In his statement, Dinardo was forced to identify petitioner

Murdoch as a participant in the crime; (3) Dinardo does not

actually know Murdoch, although Dinardo is acquainted with

Murdoch’s brother; and (4) Murdoch and Dinardo did not

commit any crime. 

The magistrate judge then summarized trial testimony that

rebutted these factual assertions. Because the factual assertions in the letter had been “contradicted by trial testimony”

or “were demonstrably false in the light of other testimony,”

the “intrinsic probative value of the letter was and is low.”

Thus, the exclusion of the letter from evidence did not substantially diminish Murdoch’s right to effective crossexamination. The magistrate judge also concluded that the

decision to exclude the letter was subject to harmless error

analysis, and, further concluded, under the Brecht v.

Abrahamson standard, 507 U.S. 619, 637 (1993), that there

was no “grave doubt” as to whether the jury would have

reached a different result had the letter been admitted. While

acknowledging that “Dinardo’s testimony was crucial,” the

magistrate found that “Dinardo’s prior inconsistent statement

was inextricably linked with other statements which either

conflicted with other evidence or were demonstrably false.”

Therefore, he concluded that any error resulting from the

exclusion of the letter was harmless. 

The district court adopted the findings and recommendation

of the magistrate judge and denied Murdoch’s habeas petition.

MURDOCH v. CASTRO 7141
Murdoch filed a timely notice of appeal. We granted a certificate of appealability on the issue of “whether the district court

erred by ruling that the state trial court did not violate the

Sixth Amendment right to confrontation when it denied him

access to Dinardo’s letter.” 

II. STANDARD OF REVIEW 

We review de novo the district court’s denial of a § 2254

habeas petition. Insyxiengmay v. Morgan, 403 F.3d 657, 665

(9th Cir. 2005). Under the Antiterrorism and Effective Death

Penalty Act of 1996, a habeas petition challenging a state

court conviction will not be granted unless the decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). 

III. DISCUSSION

As noted, this is the second time we have examined

whether California’s attorney-client privilege bars Murdoch

from seeing or using an exculpatory letter written by the

state’s witness to his lawyer. The starting point of our analysis

is thus the law-of-the-case doctrine, which “ ‘posits that when

a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the

same case.’ ” Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 816 (1988) (quoting Arizona v. California, 460

U.S. 605, 618 (1983)). “This rule of practice promotes the

finality and efficiency of the judicial process by ‘protecting

against the agitation of settled issues.’ ” Id. (quoting 1B J.

MOORE, J. LUCAS, & T. CURRIER, MOORE’S FEDERAL PRACTICE

118 (1984)). “For the doctrine to apply, the issue in question

must have been ‘decided explicitly or by necessary implication in [the] previous disposition.’ ” Milgard Tempering v.

Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (quot7142 MURDOCH v. CASTRO
ing Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th

Cir. 1982)) (alteration in original).1

[1] In Murdoch’s prior appeal, we held that, under the right

set of facts, Supreme Court precedent suggests the Sixth

Amendment right to confrontation could support admission of

the letter, even against a valid claim of attorney-client privilege. Murdoch I, 365 F.3d at 706. We vacated the district

court’s denial of Murdoch’s habeas petition and remanded the

case with instructions that the district court review the letter

in camera to determine “whether, as applied to the totality of

facts in this case, the denial of access to Dinardo’s letter

resulted in an unconstitutional denial of Murdoch’s Sixth

Amendment right to confront witnesses.” Id. A necessary

implication of our decision — and hence, law of the case —

is that the confrontation clause could support introduction of

the letter as evidence. Otherwise, there would have been no

ground upon which to vacate the decision of the district court.2

[2] We therefore proceed to the question of whether Murdoch’s Sixth Amendment rights were violated by the exclusion of the privileged letter.3

 The Sixth Amendment

1No party contends that the law of the case does not apply. Thus, we

need not inquire whether any exception to that doctrine should apply. See

United States v. Lummi Indian Tribe, 235 F.3d 443, 452-53 (9th Cir. 2000)

(enumerating the exceptions to the doctrine). 

2Also necessarily implicit in our decision in Murdoch I was that

Supreme Court precedent had “clearly established,” as required by 28

U.S.C. § 2254(d)(1), that under the proper circumstances, shielding a witness’ letter to his attorney under the attorney-client privilege could violate

a defendant’s confrontation rights under the Sixth Amendment. We note

that other circuits have arrived at the same conclusion as Murdoch I that,

under Supreme Court precedent, the attorney-client privilege must sometimes yield to the Sixth Amendment right to confrontation. See Mills v.

Singletary, 161 F.3d 1273 (11th Cir. 1998); United States v. Rainone, 32

F.3d 1203, 1206 (7th Cir. 1994). 

3Like the panel before us, we are bound by the state court’s interpretation of its evidence law — that Dinardo’s letter is protected by the

attorney-client privilege. Murdoch I, 365 F.3d at 703 n.1 (quoting Jammal

v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (“We are not a state

supreme court of errors; we do not review questions of state evidence

law.”)). 

MURDOCH v. CASTRO 7143
guarantees Murdoch the right “to be confronted with the witnesses against him.” U.S. CONST. AMEND. VI. “Confrontation

means more than being allowed to confront the witness physically. ‘Our cases construing the (confrontation) clause hold

that a primary interest secured by it is the right of crossexamination.’ ” Davis v. Alaska, 415 U.S. 308, 315 (1974)

(quoting Douglas v. Alabama, 380 U.S. 415, 418 (1965)). 

[3] Although Murdoch’s attorney cross-examined and recross-examined Dinardo, this alone does not resolve whether

Murdoch was afforded his right to cross-examination, because

“the Confrontation Clause requires that a defendant be given

an opportunity for effective cross-examination.” Murdoch I,

365 F.3d at 704 (emphasis added). Effectiveness requires that

“the trier of fact [have] a satisfactory basis for evaluating the

truth of the prior statement.” California v. Green, 399 U.S.

149, 161 (1970). “When exploring the credibility of a prosecution witness who testifies against a criminal defendant, it is

axiomatic that the defendant may employ the witness’s prior

inconsistent statements in order to impeach the credibility of

the witness.” United States v. Adamson, 291 F.3d 606, 612

(2002). “ ‘Wide latitude in cross-examination is especially

appropriate when the key witness is an accomplice of the

accused.’ ” Murdoch I, 365 F.3d at 704 (quoting Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir. 1980)); see also United

States v. Mayans, 17 F.3d 1174, 1184 (9th Cir. 1994) (the

right to cross-examination is “ ‘especially important with

respect to accomplices or other witnesses who may have substantial reason to cooperate with the government’ ”) (quoting

United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976)). 

Here, Murdoch’s counsel was able, by effective crossexamination, to raise doubts as to Dinardo’s biases and motivations. Dinardo testified that his sentence was reduced to

“about five years” in exchange for his testimony. He testified

about his previous theft convictions, both before and after the

robbery in question. He testified to prior inconsistent statements: that at the time of his arrest he initially denied any

7144 MURDOCH v. CASTRO
involvement in the crime; that he “would have said whatever

it took to get out of custody” including “point[ing] out someone else” involved in the crime; that he pleaded “not guilty”

at his own trial and “avoid[ed] responsibility” for the crime;

and that his story had changed from earlier claims that the

police had coerced his confession. Dinardo equivocated on

the stand when confronted with prior inconsistent testimony:

“I testified to that? . . . I — I can’t remember testifying like

that. If I could see it, I could probably remember.” In sum,

Dinardo’s cross-examinations were effective. 

[4] The confrontation clause “guarantees only ‘an opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the

defense might wish.’ ” United States v. Owens, 484 U.S. 554,

559 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 739

(1987)). “ ‘A limitation on cross examination does not violate

the Confrontation Clause unless it limits relevant testimony

and prejudices the defendant, and denies the jury sufficient

information to appraise the biases and motivations of the witness.’ ” United States v. Bridgeforth, 441 F.3d 864, 868 (9th

Cir. 2006) (quoting United States v. Holler, 411 F.3d 1061,

1066 (9th Cir. 2005)). We conclude that here the jury was

provided ample information on which to measure Dinardo’s

biases, particularly given his admission that he earlier denied

any involvement on his or Murdoch’s part in the crime. 

Although we can imagine a letter of such probative value

that its exclusion would render cross-examination constitutionally defective, Dinardo’s letter is not such a letter. We

agree with the reasoned analysis of the magistrate judge that

the letter is of low probative value. The assertions in the letter

run contrary to the testimony of Murdoch’s brother, his former roommate, the investigating detective, the eye-witnesses

at the crime, and the fingerprints at the crime scene. Although

questioning about the letter may have added some marginal

benefit to Murdoch’s cross-examination, its absence did not

MURDOCH v. CASTRO 7145
deny the jury sufficient information to appraise the biases and

motivations of the witness. 

[5] In light of the low probative value of the letter and the

otherwise effective cross-examination, we hold that Murdoch’s constitutional right to confrontation did not require the

disclosure of Dinardo’s letter to Murdoch’s counsel.4 Accordingly, the district court’s denial of Murdoch’s petition for a

writ of habeas corpus is AFFIRMED. 

BRIGHT, Circuit Judge, dissenting: 

Persuaded by a jury’s verdict against him, Dino Dinardo

now admits his role in the robbery of the Horseshoe Bar in

1983 and murder of a bystander. Buoyed by the hope of a

lesser sentence and his professed remorse for his role in the

crime, Dinardo became the state’s central witness against

Charles Murdoch. In Murdoch I this court concluded that

“[t]he record strongly suggests that without Dinardo’s accomplice testimony, the prosecution’s case against Murdoch was

weak.” 365 F.3d 699, 701 (9th Cir. 2004). 

We must now determine whether a letter, given by Dinardo

to his counsel before his trial but withheld from Murdoch

because of the attorney-client privilege, would have been so

crucial to Murdoch’s effective cross-examination of Dinardo

that the court’s failure to disclose it violated Dinardo’s Sixth

Amendment right to confrontation. The majority discounts the

value of the letter because it contains the routine and unsubstantiated denials of a man charged with a crime and because,

in any event, Dinardo was effectively cross-examined without

it. I reach a different conclusion and therefore respectfully

dissent. 

4Because we hold that Murdoch’s Sixth Amendment rights were not

violated, we need not reach the issue of whether a violation would have

constituted harmless error under Brecht, 507 U.S. at 637. 

7146 MURDOCH v. CASTRO
I.

The court in Murdoch I, without the benefit of the privileged letter which was then unavailable, resolved a threshold

question: it concluded that a criminal defendant’s rights under

the Sixth Amendment may overcome a third party’s assertion

of the attorney-client privilege. See id. at 706. It also speculated that Dinardo’s letter could provide additional impeachment evidence that would render his testimony useless to the

state, and thus remanded the case for the district court to

obtain and review in camera the contents of the letter:

Other than Dinardo’s predictable denial when

arrested for his involvement in the crime, the privileged letter is the only evidence of prior (purportedly) inconsistent statements by Dinardo regarding

Murdoch’s involvement in the robbery and murder.

General impeachment for bias based on his plea bargain questioned Dinardo’s reliability and trustworthiness in a much different (and lesser) way than

would actual statements inconsistent with what he

was then saying on the stand. Thus, Murdoch’s ability to fully cross examine Dinardo was severely limited by the privilege ruling. 

Murdoch I, 365 F.3d at 705. We, however, are not limited to

engaging in conjecture. The text of the letter is now before us.

Because the attorney-client privilege still shields the letter

by virtue of the majority’s opinion, I shall not interfere with

the privilege by describing the letter’s content in any greater

detail than the majority or the magistrate judge. It is, however,

possible to accurately and almost fully reconstruct the letter

from those materials and Dinardo’s testimony against Murdoch. I have endeavored to do so here. 

Dinardo’s letter is dated December 1, 1994, about five

months after his arrest on June 29, 1994. The robbery and

MURDOCH v. CASTRO 7147
murder occurred over eleven years earlier on May 17, 1983.

At the time of his arrest and also at the time he wrote the letter, Dinardo knew that a fingerprint found on the Horseshoe

Bar’s cash register connected him to the crime. His testimony

at Murdoch’s trial also indicates that, on his initial arrest, he

was unaware that the police suspected him of complicity in

the murder that occurred during the robbery. Dinardo thought

the police had arrested him only for robbery, but learned of

the murder charge when he arrived at the jail in Long Beach,

California. 

This is my reconstruction of the letter that Dinardo sent to

his counsel as he awaited trial:

I would like to make a statement about the facts surrounding my arrest for robbery and murder. I was

taking care of my young daughter when Long Beach

police arrested me at my home in Berkeley. Two

policemen, Detective Pavek and his partner, took me

to the Berkeley Police Department and interviewed

me. I wanted to get back to my daughter as I worried

about her welfare. At that time, Detective Pavek

coerced a statement from me and promised not to

charge me if I made a statement that Charles Murdoch participated in the crime. But, I do not actually

know Mr. Murdoch, although I know his brother.

Mr. Murdoch and I did not commit any crime. 

I draw particular attention to the final sentence, which I take

from the magistrate judge’s characterization of the letter: Mr.

Murdoch and I “did not commit any crime.” 

The magistrate judge asserted that this statement is a denial

both of Dinardo’s participation in the crime and Murdoch’s.

As such, he continues, it is at least half false because police

found Dinardo’s fingerprint on the cash register. However, it

is clear in the letter that Dinardo does not disavow his own

participation in the crime. After all, he knew that he had left

7148 MURDOCH v. CASTRO
his fingerprint. The sentence serves, at least implicitly, to say

that Murdoch was not with Dinardo at the scene of the crime,

which written statement directly contradicts Dinardo’s trial

testimony. 

What a boon to Murdoch. After showing Dinardo the letter

to refresh his recollection, Murdoch’s counsel could have

undermined any reliance on his testimony that Murdoch participated in the crime. The majority depicts Dinardo’s letter as

“run[ning] contrary to” his and others’ testimony at Murdoch’s trial. I agree, but the truth of Dinardo’s statements in

the letter is beside the point. Murdoch’s counsel was able on

cross-examination to show only that Dinardo initially denied

his involvement in the crime, made some inconsistent statement, and, because he hoped to gain a reduction of his sentence, had an incentive to provide testimony favorable to the

state regardless of its truthfulness. 

The majority concludes this was sufficient to undermine the

jury’s confidence in Dinardo but, as this court in Murdoch I

suggested, general impeachment is inferior to impeachment

based on a prior inconsistent statement. See Murdoch I, 365

F.3d at 705. 

The letter and its disavowal of Murdoch’s involvement in

the crime would have been the pièce de résistance, leading

inextricably to the conclusion that Dinardo was not only generally unreliable but also untrustworthy regarding the one element of his testimony that the jury (as its verdict

demonstrates) must have believed. 

The concluding question on cross-examination of Dinardo

seems obvious: “Were you lying then or are you lying now?”

What juror would give credence to any statement of Dinardo?

The prosecution’s case relying on this lying witness would

collapse. 

MURDOCH v. CASTRO 7149
II.

The remaining evidence, as the court in Murdoch I suggested when it remarked that the state’s case was otherwise

“weak,” 365 F.3d at 701, cannot sustain Murdoch’s guilt. The

evidence consisted primarily of three eyewitness identifications, but each is flawed. Dyanne Spence, a bartender at the

Horseshoe Bar, provided the most confident identification

after viewing Murdoch in a 1994 live line-up, testifying that

he carried the rifle during the robbery “beyond a shadow of

a doubt.” But, at the time of the crime, she could not positively identify his image in a photographic line-up. Carol Halliburon, a patron of the bar, testified that Murdoch “look[ed]

very similar” to the rifle-bearer. Finally, Edward Snow,

another patron, equivocated when he testified: 

Q Do you see anybody in the courtroom today

that you saw that night? 

A It’s been 13 years. And I can’t be positive. 

Q Do you see somebody who looks familiar? 

A I would say the person sitting next to the gentleman here — [Murdoch] 

Other testimony demonstrated only a social relationship

between Dinardo and Murdoch. Without belief in Dinardo’s

accomplice testimony, this collection of tenuous identifications is alone insufficient to relegate Murdoch to prison for

life without the possibility of parole. 

III.

The value of Dinardo’s letter to Murdoch’s counsel is

unquestionable. Our examination of the letter following the

court’s remand in Murdoch I has borne out the prior court’s

suspicion. Murdoch may have been able to generally impeach

7150 MURDOCH v. CASTRO
Dinardo without the letter, but the letter would have provided

a prior inconsistent statement undermining the heart of his

testimony. See Murdoch I, 365 F.3d at 705. Its impact would

not have been marginal, as the majority concludes, but rather

decisive, and therefore the writ of habeas corpus should be

granted. 

MURDOCH v. CASTRO 7151