Saturday, December 20, 2008

Instructional Error: Pulido v. Hedgpeth, 487 F.3d 669 (9th Cir. 2007)

The Supreme Court has reversed another Ninth Circuit case with the familiar rhetoric that the appellate court had ignored precedent. The Ninth Circuit used the wrong test for an alleged error in instructing the jury. In fact, on appeal the defendant himself agreed the Ninth Circuit used the wrong test; Hedgpeth v. Pulido, 129 S.Ct. 530 (2008). Remanded to the Ninth Circuit. The facts in this case are recorded in an earlier blog entitled "Instructional Error;" 3/6/08 The Ninth Circuit remanded to the district court to determine whether the correct test for instructional error is "harmless" rather than "structural." Why is it necessary to return the case to the district court? The record is already completed for appeal and no further factual findings are necessary; Pulido v. Chrones, 559 F.3d 789 (9th Cir. 2009). Subsequently, the Ninth Circuit panel vacated its remand order and ordered supplemental briefing; Pulido v. Chrones, 576 F.3d 3d 1142 (2009).

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