Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010)

A panel of three Ninth Circuit judges, who have never been inside a criminal courtroom, overruled: a unanimous jury verdict in state court; an affirmance of the conviction by the California Court of Appeal; a denial of a hearing in the California Supreme Court; denial of a petition for habeas corpus in a U.S. District Court; and granted the defendant Lunbery’s petition for habeas corpus. Without reciting the evidence, the prosecution case depended almost exclusively on the defendant Kristi Lunbery’s confession six years after her husband was found dead in their home. Death was caused by a single gunshot to the head but the weapon was never located. Lunbery confessed to detectives but later repudiated her confession. Sheriff’s investigators interviewed an acquaintance of a previous tenant in the Lunbery house who reported seeing a substantial amount of drugs and one Garza. Interviewed. Not testified. A “confidential informant” who did not testify, told detectives . . .”that he felt the killing had been a mistake.” A witness testified on the night before the body was found he saw a distinctive car park in front of the Lunbery residence for twenty to thirty seconds and drove off. He apparently heard no gunshot. Investigators interviewed another “confidential informant” who linked the car to Garza. A third person told detectives he and two friends were discussing the victim’s death several days later when Garza approached their table and said “My partners blew away the wrong dude.” Correctly, the trial court denied all motions to introduce all this hearsay. The Ninth Circuit held that the defendant Lunbery had a right to allege a third party committed the crime regardless of hearsay rules if her right to Constitutionally present a defense under the Sixth Amendment is frustrated. Citing Chambers v. Mississippi, 410 U.S. 284 (1972), a case entirely different from Lunbery, the Ninth Circuit said this inadmissible hearsay was admissible. Hearsay testimony from two “confidential informants,” and from two men who heard Garza, now deceased, admit a mistaken killing, is enough to warrant reversal? According to the Ninth Circuit, “The excluded testimony thus bore substantial guarantees of trustworthiness . . . ” The Ninth Circuit panel only cited Chambers to justify Supreme Count precedent in an attempt to comply with AEDPA. The Supreme Court has repeatedly reprimanded the Ninth Circuit for evading the restrictions of AEDPA. Conceding the weakness of the prosecution case, what did defense counsel argue to the jury without the “trustworthy” hearsay evidence? Only the credibility of the defendant. If a jury does not believe a witness, the “trustworthy” evidence is irrelevant. Kristi repudiated her confession, without which the prosecution could not have proved its case. No gun was found; no bloodstained clothes were found; no fingerprints. And no witnesses to the crime. The jury did not believe her testimony. All the hearsay meant nothing but speculation.