Criminal Appeal

Cal. Supreme Court Upholds Death Sentence Over Kennard's Dissent

The California Supreme Court affirmed the conviction and death sentence of a man found to have murdered and dismembered a woman in order to prevent her from testifying against him in another case.

While Justice Kennard concurred in the portion of the majority opinion upholding the defendant's convictions, she would have reversed the imposition of the death penalty.  In Justice Kennard's view, the fairness of the penalty phase was undermined by two prejudicial errors. 

First, the trial court should have granted defense counsel’s request to ask prospective jurors if they would invariably impose the death penalty in a case involving dismemberment of the murder victim’s body.  At capital sentencing hearings, both sides are entitled to ask questions of potential jurors specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.  On this point, Justice Kennard took issue with the majority's conclusion that the dismemberment of the victim’s body was not a circumstance that could cause a reasonable juror invariably to vote for death regardless of the strength of the mitigating evidence.

Justice Kennard identifed a second penalty phase error requiring reversal as well.  In closing argument at the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty.  Specifically, the prosecutor quoted, among other Bible verses, Genesis chapter 9, verse 6, which reads: “whoever sheds the blood of man, by man shall his blood be shed, for in his image did God make man.”  According to Justice Kennard, a prosecutor’s argument to the jury that the Bible authorizes or demands the death penalty for murder creates the risk that such argument may diminish the jury’s sense of responsibility for its verdict and imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.  Justice Kennard acknowledged that the defendant forfeited this argument because of defense counsel's failure to lodge a timely objection, but she would have reached the issue anyway because the failure to object deprived the defendant of the effective assistance of counsel.

The majoirty opinion was authored by Justice Baxter.

People v Zambrano, no. S035368 (Cal. Supreme Ct., filed 7/30/07)

Rehearing Denied in Contentious Fed. Habeas Prosecutorial Misconduct Case. Kennedy v. Lockyer, 01-55246. Read the amended opinion and order denying rehearing here. Read the original opinion here, and my post on it here.

Some of the amendments to the opinions in this case address the development, as brought out in the state's petition for rehearing, that there were different lead prosecutors at the two trials.

Constitutionality of Prosecutor's Inconsistent Theories Avoided On Rehearing. Shaw v. Terhune no. 02-16829 (9th Cir., Aug. 10, 2004).

In this amended opinion, the court radically revised the original opinion. In that original opinion, the majority found no due process violation in the prosecution of two defendants for the same criminal act which only one of them had committed: holding a gun to one of the victim's head. Based on that gun use each defendant received a gun use enhancement under Cal.Pen.Code sec. 12022.5. Judge Wallace vigorously dissented.

In the new opinion, the court decided the case on harmless error grounds. Now there's no dissent. That also explains why there was no call for an en banc vote.

Read the California Court of Appeal's decision in the co-defendant's case here.

Conviction Reversed: Insufficient Evidence of Distribution; Prosecutorial Misconduct (Lying Questioning of Defendant & Vouching). U.S. v. Combs, no. 02-50485 (9th Cir., Aug. 5, 2004).

(1) "[T]he transfer of trace, unuseable amounts of methamphetamine for the purpose of disposal is insufficient to support a conviction for “distribution” under Section 841(a)(1)." On this issue, the Court went so far as to say that the government's "reading of Section 841(a)(1) is technical to the point of absurdity." (2) Prosecutor committed misconduct by repeatedly questioning the defendant about whether a case agent was lying in his testimony. The prosecutor also improperly vouched for the agent by arguing that he would lose his job if he lied on the stand. The court found each instance of misconduct to be plain error and each, standing alone, would require reversal.

This case was prosecuted by the U.S. Attorney for the Central District of California.

Panel: Reinhardt, Thompson, and Wardlaw (author)

No Misconduct In Prosecutor's Interference With Defense Ability to Call Central Witness (the hitman in a muder for hire prosecution). People v. Woods, no. G030494 (Cal.Ct.App. (4th Dist./Div. 3) July 21, 2004)

District court did not err in denying motions for new trial and to dismiss; Appellant was not prejudiced by the government’s misconduct, including its failure to disclose that a key informant was rewarded with illegally-obtained permanent resident status. U.S. v. Ross, no. 02-50226 (9th Cir., June 21, 2004).

Panel: Kozinski, T.G. Nelson, and Jane A. Restani (author) (Chief Judge, United States Court of International Trade)

We're From the Govenrment and We're Here to Help: Glaring Government Agents Intimidate Jurors. U.S. v. Rutherford, no. 03-10158 (9th Cir., June 10, 2004).

Ninth Circuit remands for further proceedings to determine whether jury was tainted:

[The defendants] also assert that the jury was prejudiced because a large number of IRS and government agents sat directly behind the prosecution table throughout the trial and glared at the jurors, intimidating them, and causing some of the jurors to fear that if they acquitted the Rutherfords, the IRS might retaliate against them. In this regard, the Rutherfords assert that the district court improperly restricted the scope of the evidentiary hearing and impeded their ability to make a prima facie showing that the jurors were adversely influenced by the government agents’ conduct. The Rutherfords’ more fundamental contention, however, is that the district court erred in finding that they must prove that the agents “intended” to influence the jurors. According to the Rutherfords, they need show only that the agents’ conduct created a risk that the verdict might be influenced, regardless of the government’s motive. On the latter two points, we agree with the Rutherfords. Accordingly, we vacate the district court’s ruling, and remand for further proceedings.

Prosecutor Disbarred for knowing use of false testimony in capital case. Read the Supreme Court of Arizona opinion.

Prosecutor May Elicit Testimony That Defendant Did Not Request Live Lineup.
Case: People v. Lewis, no. A098387 (Cal.Ct.App. (1st Dist., Div. 4)) (partially published)
Proceeding: direct criminal appeal following jury trial.

Holding: Prosecutor's eliciting of detective's testimony that defendant did not request a live lineup was not misconduct and did not infringe defendant's right to remain silent.

Authoring Justice: Laurence D. Kay.

"Freeway Therapy" for Whistleblower Deputy D.A. The Ninth Circuit's opinion today in Ceballos v. Garcetti, no. 02-55418, is a fascinating read about how Deputy D.A. whistleblowers are treated, about how the First Amendment applies to the workplace, and about sovereign immunity. The Ninth Circuit held that the defendants were not entitled to qualified immunity because the law was clearly established that the Deputy District Attorney's speech---regarding false statements made by a sheriff's deputy in a warrant affidavit---"addressed a matter of public concern and that his interest in the speech outweighed the public employer’s interest in avoiding inefficiency and disruption." And because the defendant district attorney was performing a county function (as opposed to a state function) when he took the alleged actions with respect to the plaintiff, neither the district attorney nor the county were entitled to Eleventh Amendment immunity.

The title of this post refers to one method of retaliation imposed against the Deputy D.A. in this case: "The transfer to the El Monte Branch is described by Ceballos as an act of 'Freeway Therapy,' a practice of punishing deputy district attorneys by assigning them to a branch requiring a long commute to work." (See slip op. at 3450, n.2

Judge O’Scannlain specially concurred, urging en banc review to overrule the authority relied upon in the main opinion:

I write separately because although I concur in the court’s opinion that Roth v. Veterans’ Administration of the United States, 856 F.2d 1401 (9th Cir. 1988), controls the result, I believe that Roth was wrongly decided and that it ought to be overruled, perhaps even by our court’s rehearing the present case en banc.

This case calls into doubt and reaffirms my suspicions about prosecutors. Some are whistleblowers; some think they're the king (or queen) of the Hill.

"When Prosecutors Err, Others Pay the Price." Sunday's New York Times has a lengthy article by Andrea Elliott and Benjamin Weiser on prosecutorial misconduct. The article focuses on cases in the Bronx and notes that despite judicial findings of misconduct, prosecutors are not disciplined.

The article mentions a Center for Public Integrity (CPI) report which can be accessed here. The CPI "Harmful Error" report has an amazing amount of data. CPI has a page devoted to each state. The California page, which includes a list of all publised prosecutorial misconduct cases since 1970, contains this summary:

The Center's study of criminal appeals from 1970 to the present revealed 590 California cases in which the defendant alleged prosecutorial misconduct. In 75 cases, judges ruled a prosecutor's conduct prejudiced the defendant. In 41 cases, a dissenting judge or judges thought the prosecutor's conduct warranted reversing or remanding the defendant's conviction, sentence or indictment. Of all the defendants who alleged misconduct, one later proved his innocence.

Of the cases in which judges ruled a prosecutor's conduct prejudiced the defendant, 48 involved improper trial arguments or examination, 11 involved withholding evidence from the defense, eight involved discrimination in jury selection, three involved pre-trial tactics, two involved threatening a witness and the three remaining cases involved destruction of evidence, breaching an agreement and eavesdropping.