Zapata v. Vasquez: 9th Circuit on IAC For Failure to Object to Misconduct in Closing

In the current, rather dismal climate for federal habeas review of IAC claims, the recent Ninth Circuit decision of Zapata v. Vasquez (12-17503) is a welcome relief.  The federal panel reverses after finding counsel was ineffective for failing to object to emotionally manipulative arguments by the prosecutor in closing.  Most helpful for future reference, assuming Zapata does not go the way of so many other Ninth Circuit habeas grants in recent years, is the rejection of the state’s theory that it was tactically legitimate for trial counsel not to speak up.   The panel emphasizes the timing of the prosecutor’s remarks — coming just before the end of the rebuttal, such that an objection would have been the only realistic way to protect the defendant.  The opinion goes on:

 The state court’s conclusion that “it is always conceivable” that trial counsel might have a reason not to object to improper jury argument—even where, as here, it was falsified, inflammatory and delivered immediately before the jury was sent to deliberate Zapata’s fate—contravenes the Supreme Court’s admonition that “courts may not indulge post hoc rationalization for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions.” Harrington, 562 U.S. at 108 (internal quotation marks omitted); see also Wiggins v. Smith, 539 U.S. 510, 526–27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (rejecting a state court’s attempt to rationalize counsel’s limited investigation into mitigating evidence as a strategic decision when available evidence suggested counsel’s conduct stemmed from “inattention, not reasoned strategic judgment”)). Moreover, by stating that “it is always conceivable” that the “tone” of the challenged remarks provides a reason not to object, the state court effectively eliminated the possibility of ever finding ineffectiveness of counsel for failing to object during closing summation, no matter how egregious the argument.

In re Joseph H. on Juvenile Capacity to Appreciate Wrongfulness

What are we talking about when we say that a juvenile “appreciates the wrongfulness” of his conduct, in a legal sense, in spite of being ten years old?  That question is addressed a bit in In re Joseph H. (E059942) published this week by Division 2 of California’s Fourth District Court of Appeal.   The 10-year-old in this distressing case had been exposed to drugs in utero, had been abused, and suffered from ADHD.  An expert testified that his “mental age was younger than his chronological age.”  He appears to have shot hit father intentionally, killing him.

Time Out: Is even a very young child's understanding of "wrongfulness" sufficient to support a finding that they engaged in "crime" or is some degree of moral sophistication relevant to the determination?

Under California Penal Code section 26, juveniles under 14 are presumed to be incapable of committing a crime unless there is “clear proof” that they knew of the “wrongfulness” of their conduct at the time they engaged in it.  In Joseph H., this presumption was overcome by several statements that the juvenile made essentially conceding that his act was “wrong.”

However, the parent in me wonders about this analysis.  Because even a 5-year-old can understand wrongfulness, but a 5-year-old’s understanding of the idea is very narrow.  Wrongfulness, for a small child, seems to have to do with violating rules, particularly the rules of parents and teachers.  It is only as we get older that we begin to have a broader understanding of the long-term ramifications of our conduct and the role that morality plays in ordering society.  The United States Supreme Court has drawn attention to the way youth affects moral understanding in the line of cases from Roper v. Simmons in 2005 through Miller v. Alabama in 2012.

One could argue that by setting the section 26 presumption at age 14, the Legislature was looking for some evidence that a juvenile has a more mature and complex understanding of “wrongfulness” than simply the knowledge that it is “wrong” to shoot a person, a point on which most kids in kindergarten can probably agree.

U.S. v. Alcantara-Castillo: Ninth Circuit on Questions of the Form “Was He Lying When…?”

A case out today from the Ninth Circuit, U.S. v. Alcantara-Castillo (12-50477), reverses on the basis of prosecutorial misconduct. Nothing really groundbreaking here, but a good review of caselaw establishing that it’s not kosher for the prosecutor to ask a witness whether a law enforcement official is lying when they testify to incriminating details. Also, perhaps more helpfully, a rejection of the argument that this type of question was okay as quasi-rebuttal of the defense’s challenge of the law enforcement officer’s credibility.  See pp. 14-15 of the slip opinion.

Can We All Get Along? From Rodney King to Freddie Gray

While the media shakes its collective head at the events in Baltimore, perhaps we should take a moment to recall that it was 23 years ago today, on April 29, 1992, that four LAPD officers were acquitted of savagely beating Rodney King.  The result of that verdict, of course, was days of intense turmoil in Los Angeles and some soul searching in the LAPD.

King famously asked “Can we all get along?”  Later in his life, he was quoted as saying “I can hear them mocking me for when I called for an end to the destruction, like I’m a fool for believing in peace.

AEDPA Turns 19 Today. Wear Red Tape to the Birthday Party.

Nineteen years ago today, on April 24, 1996, the Antiterrorism and Effective Death Penalty Act, better known as AEDPA, was signed into law.

Dress code for the AEDPA birthday party: lots and lots of red tape!


The result of this law, after nearly two decades, is the proliferation of an enormous body of federal jurisprudence dedicated entirely to procedural gymnastics rather than substantive issues.  The result is also numerous opinions written by federal judges lamenting the fact that, under AEDPA, they are powerless to do anything to deal with cases where egregious errors occurred below — even where, as in the 2013 case of Long v. Johnson, the judge has “grave doubts about whether the State has convicted the right person.”

Part of the point of AEDPA was ostensibly to reduce the burden on federal courts.  But as Professors Nancy King and Joseph Hoffmann discuss in their book Habeas For the Twenty-First Century, that is not what has actually happened.  Inmates have not stopped filing federal habeas petitions merely because Congress passed a law.  So federal courts now are spending enormous amounts of time handling questions about procedural default, exhaustion, statutes of limitations, tolling, and so on, instead of looking at the substance of habeas claims.  As King and Hoffmann write, AEDPA has meant that “the percentage of petitioners who obtain relief has decreased over time.  But it is not clear that these various restrictions have actually reduced the burden of litigating those cases to conclusion.”

Related Posts:

Doody v. Ryan: Is Federal Habeas Review Just “a Big, Fat Rubber Stamp?”  Is Deference a “Blindfold”? (May 10, 2011)

Blistering 11th Circuit Dissenters Declare Habeas “Dead in This Country,” Suggest that AEDPA Has Suspended Habeas (May 20, 2011)

People v. Lloyd: Reversal for Prosecutorial Argument Undermining the Standard of Proof Beyond a Reasonable Doubt

“What does not guilty mean? It means he did not commit a crime.”  So argued an Orange County prosecutor in a case that was reversed yesterday by Division Three of the Fourth District Court of Appeal, since that argument conflates the mere failure to prove guilt with the nonexistence of a criminal act.  The Court of Appeal writes in People v. Lloyd (G049197) that this argument “played on a common misconception and misstated the law, but we cannot tell from this record whether the prosecutor deliberately intended to mislead the jury or the statements merely were the result of sloppiness or inattention.”

One may disagree about whether there’s really any ambiguity in terms of the prosecutor’s intentions (the opinion notes that other misstatements also occurred), but in any event it’s notable simply that the outcome here is a reversal.

Another One for the Misconduct Files…

Here, a U.S. Marshal in South Gate destroys one observer’s camera for no good reason, but neglects to notice that a second person is filming the first person.  This occurred on Sunday, according to the YouTube description.  Note the very large weapon the marshal is carrying as he destroys this woman’s phone.  The whole thing feels a little bit like something we would expect to see in a different country.

People v. Diaz: In a Cautionary Admonition Case, the Attorney General Argues that Instructional Language Undermines Reasonable Doubt

The department of “did I just say that out loud?” brings us the following: The California Supreme Court published an opinion on the cautionary admonition yesterday, People v. Diaz, S205145, that is kind of interesting substantively but even more intriguing for its discussion of an argument that the Attorney General made — an argument that basically begs to be recycled by the defense bar with a cite to the AG’s position here.

Keep it classy, respondent.

Diaz concerns whether the jury needs to be told that it should “consider with caution” unrecorded out-of-court statements made by the defendant, including in cases where the statements go to an element of the offense, such as in threats cases.  The piece of the opinion that really catches my eye is the following:

the Attorney General argues that, in the context of a criminal threats case, the cautionary instruction conflicts with the requirement that the elements of the offense, including the threat itself, be proved beyond a reasonable doubt. The Attorney General contends that the cautionary instruction could mislead jurors to believe they could find a defendant guilty of making a criminal threat without proof beyond a reasonable doubt that the threat was made, as long as they exercise caution in making that determination.

Now, the Cal Supremes say this contention is “not persuasive.”  But here we have the Attorney General publicly arguing that the “cautionary admonition” language of CALCRIM No. 358 could undermine the standard of proof beyond a reasonable doubt.  And perhaps it could.  But so could plenty of language in other CALCRIM instructions, language that is far more closely directed specifically to the burden of proof — like CALCRIM No. 376 on possession of recently stolen property [“if you also find that supporting evidence tends to prove his guilt, then you may conclude” the defendant is guilty], CALCRIM No. 359 on corpus delicti [“the other evidence may be slight and need only support a reasonable inference that a crime was committed”], and on and on.  When we challenge these instructions in the future, and when the AG argues that we’re insane, it seems like a discussion of the position asserted in Diaz may turn out to be relevant.

The point of making this argument, for the AG, was that the AG was trying to say that the cautionary admonition need not be given in a case where the defendant’s out of court comments go to an element of the offense.  The intent, in other words, was to try to obtain convictions more easily in threats prosecutions.  Ultimately, however, the AG lost that battle, and meanwhile its concession regarding the potential for an instruction to undermine the reasonable doubt standard seems, to me anyway, to be significant for future claims.


This Week in California Supreme Court Review: Embezzlement and Grand Theft by Larceny

This week, the California Supreme Court granted review in People v. Vidana, which raises the question whether an individual can be convicted of both embezzlement and grand theft by larceny based on the same conduct.  The Court of Appeal had concluded that these were not two separate offenses, and were simply two different ways of committing theft.  We’ll see if that holds up on review.

On the SF DNA Lab Scandal – and the Crawford Problem that Lurks Behind It

The SF Chronicle reported this weekend that “irregularities” at the SF DNA lab “prompted them to reassign a technician and her supervisor while officials conduct an investigation into apparent violations of department testing standards,” and that the analyst “allegedly filled in the gaps in poor-quality, incomplete genetic evidence. She generated two complete genetic profiles, and both were sent off as definitive test results to the state’s offender tracking database.”

This technician worked on — wait for it — 1,400 cases, but “failed a DNA proficiency exam last year.”  So did the technician’s supervisor, according to the Chronicle.

There is an interesting Crawford/Melendez-Diaz type angle in this case, because of the following fact.  The name of the technician who supposedly had these problems and worked on 1,400 cases is Mignon Dunbar, according to the Chronicle.  But guess how many hits you get when you search California state cases for “Mignon Dunbar” in Westlaw?

Zero.  Not a single one.

Dunbar’s supervisor, Cherisse Boland, returns all of one hit, in a single unpublished case.

So these people were mucking around in a substantial number of cases and coming up with DNA results that may or may not have been valid, and presumably were used to convict people.  Yet they have managed to be almost completely invisible to post-conviction review, as if they were never a part of the process at all.  Something is obviously wrong about this.


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