Thursday, March 6, 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.

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