Monthly Archives: September 2013

Ayala v. Wong, 730 F.3d 831 (9th Cir. 2013)

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Another death penalty case reversed by the same judge who has never affirmed a state court capital case during the last decade and who himself has been reversed by the Supreme Court more often than any other judge.  If this case is not reheard en banc it will be reversed by the Supreme Court if the AG seeks cert.

When the Supreme Court decided Batson v. Kentucky 476 U.S. 79 (1986) the case gave every trial with a black or Hispanic defendant an automatic ground for appeal if the prosecution excused a minority juror. The Court set up a framework that applies in an infinite fact driven variety of cases and requires trial courts  to spend more time selecting a jury than conducting the trial.  A motion objecting to prosecution excusal of a minority juror now fills rooms with thousands of pages of voir dire transcripts, objections, hearings, appeals and grist for the habeas corpus mill-including the so-called “comparative jury analysis” requiring review of every juror questioned compared with those excused.

Ayala is no exception. Unfortunately, the trial judge inexplicably committed a serious mistake by allowing the prosecutor to explain his reasons for excluding minority jurors in camera without the presence of defense counsel.  In any event, the jury convicted Ayala and voted the death penalty.  On automatic appeal the California Supreme Court affirmed the conviction but only after holding erroneous the trial court hearing without counsel.  Despite the state supreme court ruling that the trial court hearing without defense counsl qualified as state and federal constitutional error, the Justices held the error harmless.  Conviction affirmed on appeal; habeas corpus granted in U.S. district court; appeal by the Warden to a three judge 9th Circuit panel; affirmed in 2-1 decision.

The majority 9th Circuit panel engaged in an academic linguistic analysis of the Batson case and its progeny. The panel concluded the California Supreme Court committed federal constitutional error and had not decided the direct appeal in state court on the “merits” of the Batson motion as required by AEDPA.  Absent a ruling on the merits, de novo review followed. The panel agreed the trial judge had decided erroneously, held this practice caused prejudice, and reversed.  Then the majority panel engaged in an endless discussion of comparative analysis of jurors, one of the most questionable rules ever invented, and completely misunderstanding the reason prosecutors excuse jurors.  Ayala, who killed three men, will probably go free after the 12 year period from his conviction.

The dissent skewers the majority and cites two cases recently decided by the Supreme Court specifically rejecting the majority analysis. Both case had reversed the 9th Circuit. The Ayala case has no precedential consequence, completely misrepresents the law, and is another example of the 9th Circuit efforts to manipulate and undermine the death penalty.

Larsen v. Soto, 730 F.3d 1930 (9th Cir. 2013)

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The 9th Circuit “re tried” another habeas corpus case relying on the evidence presented to a magistrate judge who had presided over a post trial hearing and who obviously knew nothing about criminal law.  The case was originally tried by a state court jury in 1999.  Larsen, convicted and sentenced, filed a habeas corpus petition in federal court after his appeal and petitions for habeas corpus in state court were denied.

First, the 9th Circuit had to dispose of the one year statute of limitations for filing petitions for habeas corpus in federal court under AEDPA.  According to the panel, if the petition alleges and supports “factual innocence” AEDPA does not apply.  The panel considered the evidence presented at the hearing and affirmed the district court decision granting the petition.  The Warden appealed to the 9th Circuit.

Officers responded to a call from a bar that a shooting had occurred by a man wearing a green flannel shirt and sporting a pony tail.  Upon arrival at the bar parking lot, the officers saw Larsen, the man who matched the description, throw a knife under a car.  Officers arrested Larsen, who had several prior convictions, gave officers a false name. The jury convicted Larsen of possession of a deadly weapon; conviction affirmed on appeal;  review denied by the state Supreme Court. Subsequent petitions denied.

The U.S. district court granted the petition alleging ineffective counsel and the Warden appealed to the 9th Circuit. Larsen alleged he was “factually innocent.” He asserted his attorney ineffectively represented him on 3 grounds: failure to call defense witnesses; failure to request evidence of fingerprints, or the lack thereof, on the knife; failure to present evidence of third party liability.  All this “evidence” was available to Larsen at the time of trial, verdict and sentence in 1999.  He did not file his state petition on these grounds until 2005, clearly in violation of the AEDPA rule requiring habeas corpus petitions filed within one year after final judgment.

Larsen filed 13 exhibits at the federal habeas hearing. One was signed recently by Mr.McNutt and his wife.who were present at the time of the arrest. Their testimony at the hearing roughly matched their declarations.  Mr. McNutt said another man threw the knife under the car, and Larsen threw nothing. Mrs. McNuttt saw no knife in Larsen’s hand. The McNutts  moved out of state for 2 years and did not know Larsen had been tried and convicted although they saw officers arrest him.

In another hearsay declaration by  a woman, she stated a man told her he was the one who threw the knife under the truck but had not testified at trial because no one subpoenaed him.  Apparently the magistrate judge did not bother to hear the testimony of trial counsel for Larsen nor that of the officers.  She listened to the testimony of the above witnesses and found Larsen “factually innocent” on this absurd story.   No evidence was submitted on the ineffective assistance of counsel. Based on this story the 9th Circuit panel wrote an opinion that could have been resolved in one paragraph. Or one word.  Denied.

Larsen filed his state petition alleging ineffective counsel in 2005-after 6 years had elapsed and clearly an ineligible time to file a federal petition.  Under Supreme Court law, AEDPA does not apply to cases alleging “factual innocence” if the evidence warrants an exception by presentation of “new evidence.”  There is no “new evidence” here-just a credibility argument.  Obviously the jury rejected it.

The panel cites all the elements of the Warden’s arguments and rebuts every one.   The officers testified the arrest occurred at 12:30 a.m. The McNutts, said it was 7:30. p.m. Oh, just a disagreement on time except it gets dark later at night.  One of the witnesses who testified  at the hearing had been convicted of several felonies.  No problem, said the panel, he could still tell the truth.  It took petitioner 2 years to put this federal  case together and it is no different than the allegations in the state petitions.  And most importantly, said the panel, Larsen pled “not guilty.”

Time for en banc.

Comment: this is another example of record manipulation.  Larsen alleged ineffective counsel on 3 grounds from the beginning.  All he had to do was assert the reasons for ineffective counsel within the one year period in state court. Instead, he waited 6 years and filed nothing until then. He could have proceeded pro per or sought appointed counsel.  The  panel says nothing about counsel nor cites any record of the trial or appeal in state court. The petition was untimely and Larsen had no grounds for factual innocence any different than at trial.

Dow v. Virga, 729 F.3d 1041 (9th Cir. 2013)

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Every Constitutional textbook should include this case as an example of outrageous appellate decisions.  Another habeas corpus decision reversing a state Court of Appeal case and was written by the same judge who has never tried a criminal case nor sat as a trial judge. If this case is not reheard en banc, the State of California should file cert. to reverse this decision.

The prosecution main witness worked as a cashier at a convenience store when a man with a gun approached, pointed a gun at him, and demanded money. Although the clerk had never seen the man before, he described him to police and said the culprit  was wearing a grey sweat shirt, had a missing tooth, and a small scar somewhere on his face.   

Defendant was arrested in connection with another robbery. At a lineup, defense counsel asked that each person wear a band aid under his right eye to conceal the scar on his face.  The cashier identified the defendant. Police obtained a search warrant and found a grey sweatshirt in the defendant’s house.

In the first trial, which hung, the cashier changed his testimony slightly, and also made some inconsistent statements.  The defendant had no missing tooth but a gap between his front teeth. According to the detective, the scar was not visible from more than a few feet away.  

At the retrial, the detective testified that Dow had asked for the band aid rather than counsel. During closing argument the prosecutor wrongfully told the jury the defendant had asked for the band aid at the lineup to conceal his identity. A defense “expert” witness testified how misidentification errors occur but the 9th Circuit panel says nothing about whether the defendant testified.  The jury found the defendant guilty.

The State Court of Appeal agreed the mis statement by the prosecutor about seeking a band aid was misconduct but qualified it as harmless error and affirmed the verdict. The district court judge denied the petition the petition for habeas corpus.

The 9th Circuit panel recites all the evidence, argues with it, and says the defendant did not have a missing tooth-just a gap.  When someone is looking at the barrel of a gun pointed directly at him that distinction is irrelevant.  The defendant does have a scar on his face, very small and not visible unless he stands close to another person.

The 9th Circuit re trys the case; criticizes the prosecutor; rewrites the same evidence the jury heard.with all the mistakes in the victim’s testimony; and considered the “expert ” who explained to the jury about mis identification.  Nothing about the defendant’s testimony.    

The panel embraced the venerable case of Napue v. Illinois, 360 U.S. 264 (1972) requiring reversal of a case if the prosecutor knew false evidence had been admitted and it could have affected the verdict.  In Napue the prosecutor withheld evidence a witness had been promised leniency in exchange for his testimony. The California state court agreed the prosecutor knew of the falsity of her argument but that knowledge does not necessarily require reversal of a verdict unless it is “material, i,e.,” whether the evidence could have affected the judgment of the jury. According to the 9th Circuit panel, the state court used the word “would” instead of “could, ”  a lesser standard of harmless error.

Well, said the panel, this wrong use of the two words is contrary to AEDPA requirements so we need not comply with the federal standard and can use a de novo test requiring no deference.

And, said the panel,  the witness made inconsistent statements of identification. But the jury heard all this evidence, including the mistakes in identity testimony, and heard the expert testify to the dangers of mistaken identity. (a witness with a gun pointed at his  head cannot easily distinguish the difference between a gap and a missing tooth). The jury heard no testimony from the defendant. They found the defendant guilty on the same evidence the 9th Circuit panel found him not guilty, or at least entitled to a third trial).

This decision is another abuse of discretion the Supreme Court recently held involving the 9th Circuit.  Parsing the difference between “could” and “would” is another example  of academic naiveté and reality. And an abuse of discretion.