Criminal Appeal

Contact With Jurors After Verdict Not A Critical Stage Of The Proceedings

The defendant in this case argued that he and defense counsel were absent at a critical stage of the proceedings when the trial court arranged for the jury to secretly leave the building after the verdict was rendered, violating his constitutional right to due process of law. He further alleged that Code of Civil Procedure section 237, which governs the right of jurors to refuse to discuss the case, violates substantive due process by depriving him of an impartial jury.

Division Five of California's Second District Court of Appeal rejected the defendant’s due process claim based on his absence at a critical stage of the proceedings because the issue was not raised in the trial court, the decision to allow the jury to leave through a nonpublic exit was not a critical stage of the proceedings, and any error in connection with the decision was nonprejudicial.

The Court also held that his substantive due process claim fails because there is no historical right to question jurors regarding their verdict and there is no hint of jury misconduct in the record.

The unanimous opinion was authored by Justice Sandy R. Kriegler.

People v. Santos, no. B187213 (Cal.Ct.App. (2nd Dist., Div. 5) filed 2/20/07)

No Fundamental Right To Incest With Adult Daughter

A special Valentine's Day ruling:

Relying on Lawrence v. Texas (2003) 539 U.S. 558, the defendant contended that his incest conviction violated his Fourteenth Amendment due process rights because the statute criminalizes sexual intercourse between consenting adults. Division Two of California's Fourth District Court of Appeal disagreed, finding incest distinguishable from the criminalization of sodomy between consenting members of the same sex.

The Court concluded that there is a rational basis for criminalizing incest, specifically between consenting adults of the opposite sex who are related by consanguinity (e.g., fathers and daughters). Prohibiting incest, according to the Court, serves the state’s legitimate interest in protecting against inbreeding, as well as its legitimate interests in protecting the integrity of the family unit and protecting persons who may not be in a position to freely consent to sexual relationships.

The Court of Appeal did, however, remand for resentencing in light of Cunningham, as the defendant was sentenced to the upper term without the taking of an on-the-record waiver of his right to a jury trial on the factors in aggravation.

The unanimous opinion was authored by Justice Jeffrey King.

People v. Scott, no. E039093 (Cal.Ct.App. (4th Dist., Div. 2) filed 2/14/07)

Fundamental Due Process Error To Reinstate Trial Court Judge Previously Recused For Bias

Division One of California's Fourth District Court of Appeal reversed the defendant's convictions in this case because the Superior Court judge who presided over her trial had previously disqualified himself and was later reinstated into the case.

In pretrial proceedings, the judge recused himself based on his friendship with a judicial colleague whom the defendant was rumored to be stalking. When the prosecution later notified the superior court that it had found no evidence to substantiate these stalking rumors, the supervising judge assigned the case to the disqualified judge for trial, essentially retracting the prior disqualification order. The disqualified judge accepted the assignment over Freeman's objection.

The Court of Appeal held that the defendant may not obtain appellate review under California's statutory disqualification scheme becasue she did not file a petition for writ of mandate at the time of the reinstatement. However, the Court of Appeal determined that she was entitled to review for constitutional due process error.

The Court of Appeal concluded that fundamental due process error occurred when the judge, previously recused for bias, was reinstated into the case notwithstanding the repeated protests of the defendant and under circumstances reflecting a persistent appearance of bias. The judge's reinstatement created a serious likelihood of undermining public confidence in an impartial judiciary, and created an error of constitutional dimension. According to the Court, once a judge has been disqualified for actual bias or the appearance of bias, the public has a right to expect that the judge will have no further dealings with the case except for minor, ministerial-type matters. Because the error affected the integrity of the judicial process, reversal was required.

Justice Judith L. Haller authored the unanimous opinion.

People v. Freeman, no. D046394 (Cal.Ct.App. (4th Dist., Div. 1) filed 2/5/07)

SCOTUS Reverse in Musladin (Victims Photo on Buttons in Word in Courtroom)

SCOTUS has preliminary post on the Supreme Court's ruling this morning in Musladin v. Carey, no. 05-785. The Court, in an opinion written by Justice Thomas, reversed the Ninth Circuit, holding that no relief was available under AEDPA. Justice Thomas apparently put much weight on the fact that the conduct at issue was by spectators and the court had not previously addressed such private courtroom conduct. Apparently three justice wrote separate opinions about private spectator conduct.

This opinion may indeed exemplify the effect AEDPA has on the development of substantive criminal law. While the case sets a precedent for cases presenting similar claims on federal habeas review, it does not decide the ultimate constitutional due process question. The Court would have to review a case on direct review in order to clearly decide the due process question.

Indeed, at oral argument Justice Stevens queried whether what it would say about the requirements of due process could be dicta if a majority agrees that no relief was available under AEDPA:

May I ask this question? Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. [Para.] Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?

Caveat: I haven't read the opinion yet and won't be able to until this evening.

Shackling On Deck.   The Atlanta courthouse shooting may bring greater attention to a pending U.S. Supreme Court case: Deck v. Missouri, no. 04-5293, which was argued on March 1. The questions presented in Deck include:

• "Are the Fifth, Sixth, Eighth, and Fourteenth Amendments violated by forcing a capital defendant to proceed through penalty phase while shackled and handcuffed to a belly chain in full view of the jury"?; and
  
• "if so, doesn't the burden fall on the state to show that the error was harmless beyond a reasonable doubt, rather than on the defendant to show that he was prejudiced?"

The oral argument transcript is available here. (Justice Scalia actually suggested that if he were a prosecutor he would want the penalty phase defendant in street clothes. hair-combed and smiling.) Read the briefs here.

Expiration of Two-Year SVP Commitment Does Not Moot Federal Habeas Challenge to Commitment; Due Process and EP Challenges Relating to Petitioner's Original Unlawful Commitment that Preceded SVP Commitment Rejected. Hubbart v. Knapp, no. 03-16877 (9th Cir. Aug. 13, 2004).

Holdings: (1) Mootness. the court rejected the state's argument that the habeas petition was moot because of expiration of the original two-year commitment challenged in the petition. The court specifically rejected the state's argument that the claims did not evade review because the California courts ruled on them: "for purposes of determining mootness in connection with California’s repeating pattern of two-year commitments under the SVPA, a federal constitutional claim evades review if the challenged action expires before a federal appellate court has the opportunity to fully consider the allegation."

(2) Due Process: state court's rejection of due process claim was not an unreasonable application of US Sup. Ct. case law. The Cal. SVP law provides that proceedings may only be initiated against persons already “in custody under the jurisdiction of the Department of Corrections.” When the petitioner was committed he was in the custody of the dept. of corrections, but that custody was illegal because appellant had been detained illegally under former parole revocation regulation § 2616(a)(7). According to the 9th Cir., "the state court held that 'an SVPA commitment resulting from unlawful custody [does not] violate due process where, as here, the unlawful custody was the result of a good faith error and where, as here, the SVP is provided with numerous procedural safeguards.'" The Ninth Cir. found this a reasonable application of due process law and affirmed.

(3) Equal Protection. The court also rejected equal protection challenges to the same commitment: one challenging the different treatment of those "in custody" pre-SVP commitment due to an unlawful parole revocation, as compared to those who did not have their parole revoked or whom successfully challenged their pre-SVP commitment; the other challenging the differing definitions of mental conditions under the SVP and California's Mentally Disordered Offender Law.

Panel: Goodwin, Canby, and Tallman (author)

Denying Deferred Entry of Judgment (WI sec. 725(a)) Because Minor Took the Matter To Trial Violates Due Process. In re Edy D., no. B166775 (Cal.Ct.App. (2d Dist., Div. 4), July 26, 2004).

Panel: Epstein, Hastings, and Curry (author), .