Vindictive Prosecution (Part II): U.S.A. v Jenkins, 518 F.3d 722 (2008)

In an earlier Blog (Click on Blog, entitled “Vindictive Prosecution” we reviewed USA v. Jenkins, 504 F.3d 694 (9th Cir. 2007) foreclosing prosecutors from prosecuting Sharon Jenkins for a crime she testified to committing on the witness stand defending herself from charges of another crime.The petition for rehearing en banc was, astonishingly, denied over the dissent of seven Ninth Circuit Judges.The lead judge in dissent wrote this: “By concluding that prosecutors should have sacrificed the resources necessary to pursue the charges before Jenkins admitted to the crimes under oath, the opinion oversteps our judicial function. . .the Jenkins opinion creates the preposterous rule that a defendant can shield himself from future prosecution for unrelated crimes by openly admitting to them on the stand;” Jenkins, 518 F.3d 722 (9th Cir. 2008). California Attorney General Brown has not filed a petition for review in the Supreme Court. l

Robinson v. Lehman, 128 S.Ct. 1219 (2008)

The 9th Circuit buried  Robinson v. Lehman in an unpublished opinion (Robinson v. Lehman, 228 Fed.Appx. 697), a Ninth Circuit panel reviewed a U.S. District Court ruling denying a motion for summary judgment filed by police officer defendant Robinson. Plaintiff [estate of Lehman] had alleged the officer unlawfully used lethal force against deceased, Joshua Lehman; 42 U.S.C.A.1983. The panel began its analysis with this quote from the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985): The Fourth Amendment prohibits police from employing lethal force against a suspect who poses no immediate threat to the officer and no threat to others. From that quote the reader can predict the result of this case. As factually described below, the officer contended he was immune from civil liability despite causing the death of Lehman whom he had shot after culmination of a car chase. In denying the motion, the Ninth Circuit panel described deposition testimony to establish officer Robinson was not shielded from liability. The court selectively summarized unfavorable testimony elicited from other officers on the scene, but ignored qualifications in their answers to questions, and concluded no reason justified the use of deadly force. The court admitted police had pepper sprayed, tasered and partially subdued a recalcitrant Lehman who refused orders to exit his truck. According to one of the officers at the scene, negotiations were in progress. The court: [T]he officer. . . shot and killed Lehman as he sat in his car, with all the tires shot out, surrounded by at least ten armed police officers and numerous police vehicles. Not a word about Lehmans prior conduct warranting justification for police presence at the scene. The reader wonders why the tires were shot out, Lehman alone in a vehicle surrounded by ten armed police officers and numerous police vehicles. That a pepper sprayed and tasered Lehman was partially subdued, is not only hyperbole-if not a misstatement-what does that phrase mean when Lehman refused to exit his truck upon orders from police? How do you negotiate with the driver of a vehicle who refuses to exit his vehicle? How do you know if he is armed? In contrast, here is a truncated summary of other police testimony, completely ignored by the panel, as paraphrased by the State of Nevada in its appeal of the Ninth Circuit decision to the Supreme Court: Earlier that day, sheriffs deputies on patrol had encountered Lehman. Without recounting the details, Lehman repeatedly rammed their vehicle, disabling it, and fled in his pick-up truck. One deputy fired shots into all four tires but Lehman escaped. During a car chase by other officers, Lehman continued to drive his vehicle on deflated tires. Officers unsuccessfully attempted to intercept his vehicle by initiating a spin maneuver with their patrol car, but Lehman never stopped until forced into oncoming traffic. Officers broke a window on Lehman’s car and fired pepper spray and taser inside but he refused to exit the vehicle. Officer Robinson arrived at the scene in response to a radio call, saw Lehman briefly emerge from his vehicle, engage in several chopping motions with a knife directed toward other officers, and heard police issuing orders. Vehicular traffic was backed up for miles and drivers stopped their cars to observe the scene. Robinson mistakenly believed Lehman had fired shots at officers (originally, deputy Sheriffs had fired shots) but he knew enough to reasonably conclude Lehman was involved in the earlier event with sheriffs deputies. Despite the presence of several police vehicles, Robinson could see Lehman had an escape route along the highway in the direction toward officers standing in his path. Robinson saw Lehman look around as though assessing whether he could hit the officers. Although Robinson did not know their precise location from his vantage point, he believed additional officers had arrived and were concealed from his view behind Lehman’s truck. Lehman accelerated his vehicle toward the officers, compelling one officer to jump aside to avoid being crushed. In an attempt to protect nearby officers from injury by the moving vehicle, Robinson fired at Lehman. Because of crossfire issues, Robinson believed he was the only person in a position to fire and that shooting Lehman was the only way to stop him. A videotape illustrated this version of the facts. This testimony, summarized by the State in its petition for review to the Supreme Court obviously differs significantly from the description of the events written by the Ninth Circuit panel. The Ninth Circuit decision concedes that police officers must make split second decisions in circumstances that are tense, uncertain and rapidly evolving. In the opinion of the panel, the Lehman confrontation apparently did not involve any of those conditions. In their view, the suspect pose[d] no immediate threat to the officer and no threat to others; Tennessee v. Garner. In its gratuitous concession to confer qualified immunity on police who do confront tense, uncertain and rapidly evolving circumstances, the panel cites another one of its cases refusing to permit the defense of qualified immunity when an officer shot the driver of a slow-moving car because . . . he [the officer] could avoid being injured by simply stepping aside; Acosta v. San Francisco, 83 F.3d 1143 (9th Cir. 1996). That naivete speaks for itself. Vehicles do accelerate. The obvious argument in the Robinson case is to let the jury decide the facts, but apparently the Supreme Court carefully read the States petition in deciding to review the Ninth Circuit decision and preliminarily agreed with the State of Nevada: Petition for hearing granted; Robinson v. Lehman, 2008 WL 423512; Ninth Circuit decision vacated and the panel ordered to reconsider its decision in light of the previous Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007). In fairness to the Ninth Circuit, the panel wrote their unpublished opinion on April 16, 2007 and lacked the benefit of the Scott decision written by the Supreme Court on April 30, 2007. The Supreme Court decided Scott v. Harris after viewing the videotape of a horrific car chase. The Justices compared the testimony of the driver (who subsequently sued the police) with the tape. The Court held a trial court can grant a motion for summary judgment sustaining qualified immunity for officers despite disputed facts if one version is so inconceivable no jury could find against them. The scenario in Scott is strikingly comparable to Robinson v. Lehman. The Supreme Court ordered the Ninth Circuit panel to reconsider their decision. The Justices could have simply reversed the Ninth Circuit panel and granted the motion for summary judgment but exercised their discretion to allow reconsideration. The panel will likely reach the same conclusion as in their original decision. For a more sensible decision on the subject of qualified immunity, see, Bingue v. Prunchak, 512 F.3d 116 9 (9th Cir.2008). 3/13/2008

Hedgpeth v. Pulido, 129 S.Ct. 530 (2008)

Case history: Pulido v. Chrones [Warden], 487 F.3d 669 (9th Cir. 2007); Cert. granted 2/25/2008; 2008 WL 482035; (U.S.) Supreme Court Reversed; Hedgpeth v. Pulido, 129 S.Ct.530 (2008). At trial, the prosecution established that a gas station clerk was shot in the face and killed. The cash register inside the store had been removed from the premises but police subsequently located it abandoned under roadside bushes. Investigators found defendant Pulidos fingerprints on the cash register and on an unopened Coca Cola can lying on the gas station counter. Other witnesses testified to defendants knowledge of the murder and linked him to the robbery. Defendant told police three different men had committed the robbery. Defendant testified he waited in a car unaware of any robbery while his uncle entered the gas station. Threatened by his uncle (who testified against him), he pried open the cash register and removed the contents. Police found no other fingerprints and defendant testified his prints on the Coca Cola can must have been made at an earlier time when he was in the gas station. In 1992 a jury unanimously convicted defendant Pulido of murder and robbery. The California Supreme Court affirmed the conviction. After failing to obtain habeas corpus relief in state courts, the defendant filed his petition for habeas corpus on the same grounds in U.S. District Court and the judge granted the petition. On appeal from this decision by the State of California, a Ninth Circuit panel affirmed the trial court; Pulido v. Chrones [Warden], 487 F.3d 669 (9th Cir. 2007). In 2008, sixteen years after conviction, the Supreme Court granted certiorari (review) of the Ninth Circuit decision; 2008 WL 482035 (U.S.). The truncated version of evidence described above is sufficient to convince anyone that a jury would vote a guilty verdict. The jury disbelieved the defendant, its that simple. The California Supreme Court agreed. Only the Ninth Circuit panel disagreed, finding the trial judge committed instructional error in his instructions to the jury on the law. The basis of the Ninth Circuit panel decision was failure of the trial court to correctly instruct the jury on the difference between a killing committed during the course of a robbery (felony murder) and an accomplice who assists (an aider or abettor) a suspect only after completion of the predicate crime (in this case, robbery). Apparently the trial court did not draw this distinction in the course of instructing the jury on the issue of guilt or innocence but did properly instruct them on the special circumstances instruction given to the jury in determining whether the punishment for accomplice liability should be increased. The error is one of Constitutional dimension only if it denies a defendant a fair trial considered in the context of the entire trial record. Upon review by the California Supreme Court, the Justices agreed on the instructional error but ruled it harmless, based on the strong evidence of defendants guilt as described above. The Ninth Circuit panel wrote three separate opinions in reversing the California Supreme Court. The first judge cited the repeated admonitions of the U.S. Supreme Court that federal courts defer to state court appellate decisions under the Anti Terrorist & Effective Death Penalty Act (AEDPA), a federal statute requiring federal courts to distinguish between an incorrect state court decision and an unreasonableone; 28 U.S.C. 2254(d). Only the latter is subject to reversal. The judge, after a superficial bow to the Supreme Court and the statute, proceeded to ignore this rule and reversed on grounds of instructional error. The second judge cited Supreme Court decisions explaining the difference between structural error in jury instructions versus harmless error when an appellate court reviews a trial record containing erroneous jury instructions; Rose v. Clark, 478 U.S. 570 (1986). In only a few cases has the Supreme Court categorized Constitutional errors as structural, e.g., denial of a right to jury trial, denial of counsel, denial of right to cross examination; In re James F., 42 Cal.4th 901 (2008). In some cases, the Supreme Court has reviewed jury instructions erroneously given to the jury on different theories of guilt. But the Court said reversal on appeal is not required when, after considering the entire trial record, an appellate court finds the error was harmless beyond a reasonable doubt. Assuming the trial court in Pulido incorrectly instructed the jury on the rule applicable to felony murder, another instruction correctly stated the law. And the trial record is unassailable. The third judge engaged in rhetorical sophistry that defies description. He muses that the jury might have thought this, or might have thought that, based on the failure of the jury to find defendant personally armed as required to enhance punishment. The probable rationale: the jury could care less; they simply avoided imposing the death penalty on a juvenile. In any event, the jury clearly accepted the prosecution evidence and a review of the facts confirms the overwhelming guilt of the defendant, either as the shooter or as an accomplice. Either theory warrants a finding of guilty and the penalty is the same. Pulido is another example of judicial verbal manipulation of a jury instruction that bears no resemblance to the reality of a criminal trial. Jurors listen to the evidence, evaluate demeanor and credibility of the witnesses, and decide. Of course accurate jury instructions are indispensable, but reading a cold appellate record is no substitute for listening to testimony from witnesses. And to reverse the California Supreme Court on the ground their opinion was unreasonable, as distinct from incorrect, is unconscionable. On February 25, 2008 the Supreme Court granted review of the Ninth Circuit decision; 2008 WL 482035 (U.S.). The Ninth Circuit decision is so unjust the Court will probably reverse without even writing a full opinion-on a case tried in 1992. As predicted, the Supreme Court reversed the Ninth Circuit; Hedgpeth v. Pulido, 2008 WL 505578. In a unanimous decision the Court criticized the Ninth Circuit for categorizing an erroneous jury instruction as “structural.” The trial court had read two instructions to the jury on accomplice testimony, one of which was erroneous. The Supreme Court not only wrote that the Ninth Circuit had used the wrong legal test, it had not determined whether the error was harmless under Supreme Court law. This case commenced in state court and the conviction was affirmed on appeal. On habeas corpus in federal court the Ninth Circuit ignored the state court conviction. Another reversal.

Smith v. Mitchell/Patrick [lWarden] 130 S.Ct. 1134 (2010); 624 F.3d 1235 (2010)

The facts of Smith v. Mitchell (Warden), 437 F.3d 884 (9th Cir. 2006) are uncomplicated. The defendant Shirley Smith was convicted in state court of shaking her baby to death. Prosecution and defense expert witnesses disagreed on the cause of death but the jury accepted the prosecution version. The California Court of Appeal upheld the conviction, the California Supreme Court denied defendants petition for review, and the U.S. District Court denied habeas corpus. On appeal of the District Court decision, the defendant argued to the Ninth Circuit panel no rational trier of fact could have found the defendant committed the essential elements of the crime beyond a reasonable doubt. The Ninth Circuit panel reversed the conviction of Smith on this ground. The Ninth Circuit panel decision did not conclude the prosecution had failed to produce evidence on every essential element of the crime. In fact, three physicians testified to all the facts necessary to establish the elements of the crime charged against the defendant. Instead, the Ninth Circuit panel accepted the testimony of defense experts who disagreed with the cause of death. Citing the Supreme Court decision in Jackson v. Virginia, 443 U.S. 307 (1979), the panel reversed the conviction and issued a writ of habeas corpus. In Jackson, the Supreme Court explained the role of federal courts in habeas corpus review of a conviction of defendants in state courts. The Court said a federal court may review the sufficiency of the evidence [at trial] to support a criminal conviction . . . not to determine whether record evidence reasonably supports a finding of guilt beyond a reasonable doubt; the relevant question is whether, after viewing evidence in the light most favorable to the prosecution, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. The State of California asked the Ninth Circuit panel (three judges) to reconsider their decision and simultaneously sought a review by a full panel (en banc) of Ninth Circuit judges. The panel and the court denied both requests; Smith v. Mitchell [Warden], 453 F.3d 1203 (9th Cir. 2006). Here is the dissenting opinion of several judges denying reconsideration of the panel decision in Smith: I [Judge Bea] write to make clear our court has, by its decision in this case, made a substantial departure from settled principles of review of jury determination of fact in criminal cases. In this case, our court decides the opinion of three Board certified physicians called by the prosecution that [defendants] shaking of the baby caused his death must be substituted with the contrary opinions of . . . non Board Certified physicians called by the defense. Why? Because the defenses doctors testified that a finding was absent on autopsy, and that finding was crucial and undermined the prosecution experts testimony. The three physicians called by the prosecution disagreed with the defense doctors and explained why such a finding was not crucial. Our court simply accepts the defense theory and rejects the prosecutions evidence. The jury was perfectly able to do just that. But when our court does it, it steps over the line dividing the province of the jury from that of the court . . . The State asked the Supreme Court to review the Ninth Circuit panel decision and the Justices did just that. Reversed and remanded on grounds the decision did not rest on Supreme Court jurisprudence. On remand, the Ninth Circuit panel reaffirmed their original decision, stating it did not conflict with Supreme Court precedent; Smith v. Patrick [Warden], 508 F.3d 1256 (9th Cir. 2007). The panel merely revised the language of its original case and came to the same conclusion. The State of California subsequently asked the Ninth Circuit to consider a more recent Supreme Court decision undermining the rationale of its decision in Smith v. Patrick. Unsurprisingly, the court refused the request; Smith v. Patrick, 519 F.3d 900 (9th Cir. 2008). On January 19, 2010 the Supreme Court vacated the judgment and remanded the case to the Ninth Circuit citing McDaniel v. Brown, 130 S.Ct. 665 (another reversal of the Ninth Circuit. On  remand the 9th Circuit recycled the case and refused to change its mine; 624 F.3d 15 (9th Cir. 2011).
Comment: The function of an appellate court is not to retry the case or believe one side or the other. Their role is: did the trial court commit legal error. If there is unquestionably no evidence of criminal conduct, the appellate court reverses a conviction on the ground a state court (or federal court) cannot convict an accused without factual support for the elements of the crime alleged. This is the Jackson rule. In Smith, the prosecutor established all the elements of the crime. Or as the Supreme Court wrote, the essential elements. This is not the first time the Ninth Circuit has engaged in second hand review of the evidence. In Juan H. [juvenile] v. Allen, 408 F.3d 1262 (2005) the defendant was convicted of murder in his e capacity as an accomplice. On appeal, the California Court of Appeal affirmed the conviction and the federal district court denied relief. The defendant filed habeas corpus on appeal from the District court. The Ninth Circuit panel summarized the testimony at trial, disagreed with the California Court of Appeal decision and substituted its own opinion. Again the court concocted several versions of the evidence to establish the defendant was not an accomplice-an argument the defense counsel would have probably made and rejected by the jury. An appellate court, unlike the jury, does not observe the witnesses and is unable to take into account their demeanor in determining their truthfulness or the accuracy of their testimony. An appellate court does not see the accused and similarly unable to observe demeanor under direct and cross examination. Appellate courts only read the written record, which is not the same as being there. Which is why we have juries. Paraphrasing a recent movie, There Will Be [Reversal] in the Supreme Court. A petitin for cert has been filed.