Category Archives: Sixth Amendment: Confrontation

Jackson v. Nevada, 133 S.Ct. 1990 (2013)

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HIdden away in a tiny sentence of the Daily Journal newspaper (California), the 9th Circuit panel wrote “in accord with the Supreme Court’s opinion of June 3, 2013 as well as the resulting  judgment . . . the district court’s denial of Jackson’s habeas petition is AFFIRMED (caps in original). This sentence infers the 9th Circuit affirmed the district court – which had denied the petition for habeas corpus.  The 9th Circuit panel had reversed the district court denial and granted the petition.  The Supreme Court is reversing the 9th Circuit decision written in Jackson v. Nevada, 688 F.3d 1091 (2012).  Another fact omitted by the panel. 

The facts in this case of sexual assault are undisputed for purposes of this blog.  After Jackson’s conviction in a Nevada state court, and the judgment affirmed on direct appeal, he filed a habeas corpus petition in federal court alleging the trial court had refused to accept written evidence that the victim had recanted her accusation of rape and fabricated the evidence. (She testified to having been threatened). In addition, the defendant had sought to submit evidence that the victim had reported prior allegations of sexual abuse by the defendant but the police could not find corroborating evidence.  The trial judge allowed cross examination on these issues but would not admit extrinsic evidence on grounds the Nevada statute does not permit evidence of “conduct to prove character.”

The U.S. District Court denied the habeas petition. On appeal, the 9th Circuit panel found a Sixth Amendment Confrontation Clause excuse when the trial judge prevented the defendant from providing a defense by refusing to permit extrinsic evidence to “balance interests.”  The panel granted the petition. On certiori, the Justices unanimously reminded the 9th Circuit in a per curiam opinion that none of the Supreme Court cases holds this position, and the vast majority of states refuse to allow  “conduct to prove character” evidence to avoid diverting jurors from focusing on collateral issues at trial.

Jackson hardly qualifies as a benchmark case. Aside from burying its reversal in one misleading sentence, the 9th Circuit attempts to “Constitutionalize” cases and stretch the law beyond its boundaries. The Supreme Court has reversed the 9th Circuit repeatedly, including one case asserting the appellate court had “abused its discretion.”  The 9th Circuit evades AEDPA, formulates a liberal immigration policy, writes innumerable reversal of death penalty cases, and holds an anti law enforcement bias. Most of these judges have never tried a case and know nothing about trial practice.  Appointing judges with no trial experience produces opinions comparable to some of those on the 9th circuit.

Not all judges of the 9th Circuit write controversial opinions, and their dissents are as scorching as those of the Supreme Court.  And the Supreme Court in Jackson reminded the 9th Circuit of its wrongful appication of AEDPA. Again.

Ortiz v. Yates, 704 F.3d 1026 (9th Cir.2013) reversing District Court

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One of the most difficult criminal cases for the prosecution to try are those involving domestic violence. Prosecutors often discover that after the passage of time between infliction of injury and trial the witness decides not to prosecute.  Advising the witness to the consequence of dismissing the case, i.e., further violent conduct or retaliation, is not always successful. The indecision to testify occurs even at trial.  Whether the witness will testify and, if so, to what extent is always an issue. Ortiz v. Yates is an example.  And another state court case reversed on habeas corpus.

Couple this indecision of a witness with an appellate judge who has never tried a criminal case, and the outcome is disastrous. In Ortiz, the witness appeared at the police station, bruised and wounded, to report her husband caused the injuries, and she demanded a restraining order. Her statement was recorded on notes by a police officer but prior to trial the witness refused to talk to a DA investigator. She submitted an inconsistent declaration of the evidence, and her testimony at trial was equivocal. On her cross examination the court refused to allow evidence of an alleged pre trial threat by the prosecutor that she would confront perjury if she was untruthful.   

Obviously the jury understood she was a reluctant and recalcitrant witness, but the photos taken by police confirming her injuries, and the interviewing officer’s notes were more than sufficient to convince the jury she had been assaulted.  The prosecutor also introduced evidence of the defendant’s prior conviction-for the same offense.  The jury found the defendant-who did not testify-guilty. 

This trial occurred 13 years ago; the California Court of Appealed affirmed the convicton; the U.S. district judge denied the petition for habeas corpus.  The 9th Circuit 2-1 panel discarded the Antiterrorism and Effective Death Penalty Act (AEDPA) with the usual excuse that the trial court refusal to admit testimony about an alleged prosecution threat violated the Sixth Amendment right of confrontation and cross examination of witnesses..This “constitutional error” was an unreasonable application of Supreme Court precedent under AEDPA.

The inability of an appellate judge to understand domestic violence trials is patent.  The jury could tell the witness was ambivalent, inconsistent, and indecisive .  No one needs a law degree to understand the chemistry of domestic violence trials.  But the majority panel discovered  the Sixth Amendment right to confrontation to ramp up the ability to find constitutional error.  Obviously 13 years later this case will never be retried.

This case is, at best, a statutory error.  Arguably the witness might have answered that the prosecutor threatened her, and the trial judge should have permitted the testimony. The prosecutor had rebutted this accusation in a pre trial declaration. Other than disallowing this single question the court allowed full cross examination of the witness. But to raise Sixth Amendment error that failure to allow a single question, even if relevant, could cause a court to issue a writ of habeas corpus on collateral hearing despite the rulings of the California  Court  of Appeal and the district  court judge is ludicrous.  The dissent thought so too. 

Is it time to amend AEDPA?

Merolillo v. Yates (Warden), 663 F.3d 444 (9th Cir. 2012)

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A case tried in 1997; defendant convicted; affirmed on appeal; California Supreme Court  denied a hearing; U.S. District Court denied petition  for habeas corpus.  The 9th Circuit reversed. Again. Another case ripe for en banc or Supreme Court review.

The defendant forcibly entered a car occupied by an elderly couple, threw the male occupant out, but the female occupant became caught  in the seatbelt  and partially fell out of the car. The defendant drove the car about a quarter of a mile dragging the woman on the street where her head struck the pavement and the curb.  A police chase ensued and the defendant arrested.  Approximately one month later the woman died.

The coroner testified at the preliminary hearing and explained that the head injury caused her death but conceded he was not an expert witness head damage.  Unavailable for trial, the prosecution used his report to cross examine the defense experts who testified the woman died from her serious heart history. At trial the defendant offered expert witnesses who testified the death of the woman occurred as a result of her extensive heart history.

Incredibly, the 9th Circuit panel reversed on grounds the prosecution used the coroner’s report to cross examine the defense expert.  The report was not introduced in evidence, and two doctors testified on behalf of the prosecution.  Assuming the absence of the coroner at trial and the use of his report inadmissible, this would arguably cause a Sixth Amendment violation, but the error harmless.  Not according to the 9th Circuit  because AEDPA does not apply to harmless error, and the court used its own opinion.  What is wrong with cross examining a witness with questions read from a report never introduced at trial and no testimony to support it?

The 9th Circuit does nothing more than repeat the defense attorney argument at trial, and the jury rejected it.  The 9th Circuit did not hear the witnesses, did not judge their credibility, and the absence of the coroner had no influence on the jury. Another travesty.