Best Defender Bytes:

December 28, 2010

Ninth Circuit Opinions 12-27-10

Filed under: California Appeals Attorney — Tags: , , , — fayarfa @ 3:05 am

McCullough v. Kane

No. 07-16049 (12-27-10)(B. Fletcher with Berzon;dissent by Rawlinson).

The 9th decides that the California Governor’s 2004 reversal of the petitioner’s parole recommendation from the board violated due process. The petitioner had been convicted of second degree murder (he smashed the skull of a man sleeping in a car and stole his money to buy drugs).

In the years since, petitioner became a model prisoner and was rehabilitated. The Governor’s denial of parole, despite the board’s recommendation, was because of the senselessness of the crime. The issue here revolves around whether the nature of the offense, by itself, is enough. The majority finds it is not. It relied upon a state supreme court decision that stressed that just looking at the crime’s facts was insufficient, because the focus should be on future dangerousness, although the nature of the crime was part of the analysis.

The majority discusses the inconsistencies in the state courts’ opinions and analysis. Reliance upon the state’s decision was not reasonable. There was moreover, as established by the 9th, a liberty interest in the reasoned application of the parole decisions. In dissent, Rawlinson argues that the focus should be on federal precedent, which held that the state could look exclusively at the nature of the crime. The majority’s riposte was that the state decision was subsequent to that precedent, and refined the test, which was used by the 9th in its en banc decision in finding a liberty interest.

December 22, 2010

Court of Appeals for the Ninth Circuit December-21-2010

Filed under: California Appeals Attorney — Tags: , , , , — fayarfa @ 4:36 am

Pulido v. Hedgpeth, No. 05-15916 (12-21-10)(O’Scannlain and Goodwin;dissent by Thomas).

On a remand from the Supremes to see if an error in the jury instructions was prejudicial, the 9th held it wasn’t. This was a murder case, where the petitioner got LWOP. Convicted of felony-murder and other offenses, he argued that the jury instructions, read together, impermissibly allowed him to be convicted of felony murder even if he had formed the intent to aid and abet the robbery after the victim had been murdered.

Indeed, that was his defense at trial, where the jury deadlocked
on some counts, and sent out scores of questions relating to felony murder and intent. The 9th discussed the meaning of prejudice and whether there was a “substantial and injurious effect or influence on the verdict” or whether the court has “grave doubt” as to whether there was an impact. Grave doubt is defined as the unusual circumstance where the court feels itself in a virtual equipoise as to the harmlessness.

The instructions here were not so prejudicial, as in the majority’s reading, the jury was questioning intent and not timing of actions. Dissenting, Thomas argues that a careful parsing of the jury questions indicate at least one juror that would have likely acquitted on felony murder because of the timing of involvement, and the subsequent intent. Thomas has grave doubt.

Felon in Possession Conviction Affirmed December 16, 2010

US v. Newhoff, No. 09-30143 (12-16-10)(Kleinfeld with Tallman and Settle). 

The jury wants testimony read back. What’s a court to do? Well, if the court decides to read back testimony, which is in its discretion, it had better admonish, admonish, and admonish the jury. And that admonishment should stress that all read backs can distort; that all the testimony will be read; that the transcript is not evidence; that the transcript does not reflect tone or demeanor; and that it should not be viewed in isolation.

The read back should be in open court, and the court should read. In this case, which concerned a prohibited felon with conflicting trial testimony as to whether he knew the gun was in a backpack , the jury asked for the officer’s testimony to be read back. The court did, in open court, with counsel, but neglected to give an admonishment, all though he said he would.

The 9th concludes he forgot, as did counse (for which counsel was chided). The error was plain. See US v. Richard, 504 F.3d 1109 (9th Cir. 2007). However, although accounts differed, and the verdict was renderd nine minutes after the read back. the error was harmless. The 9th also found that the sentence was reasonable and there was no error in the guidelines determination as to the gun being stolen, connected to a burglary, and that the defendant had escaped from jail while awaiting sentencing in this case.

Powered by WordPress