Monday, January 23, 2012

Merolillo v. Yates (Warden), 663 F.3d 444 (9th Cir. 2012)

A case tried in 1997; defendant convicted; affirmed on appeal; California Supreme Court  denied a hearing; U.S. District Court denied petition  for habeas corpus.  The 9th Circuit reversed. Again. Another case ripe for en banc or Supreme Court review.

The defendant forcibly entered a car occupied by an elderly couple, threw the male occupant out, but the female occupant became caught  in the seatbelt  and partially fell out of the car. The defendant drove the car about a quarter of a mile dragging the woman on the street where her head struck the pavement and the curb.  A police chase ensued and the defendant arrested.  Approximately one month later the woman died.

The coroner testified at the preliminary hearing and explained that the head injury caused her death but conceded he was not an expert witness head damage.  Unavailable for trial, the prosecution used his report to cross examine the defense experts who testified the woman died from her serious heart history. At trial the defendant offered expert witnesses who testified the death of the woman occurred as a result of her extensive heart history.

Incredibly, the 9th Circuit panel reversed on grounds the prosecution used the coroner's report to cross examine the defense expert.  The report was not introduced in evidence, and two doctors testified on behalf of the prosecution.  Assuming the absence of the coroner at trial and the use of his report inadmissible, this would arguably cause a Sixth Amendment violation, but the error harmless.  Not according to the 9th Circuit  because AEDPA does not apply to harmless error, and the court used its own opinion.  What is wrong with cross examining a witness with questions read from a report never introduced at trial and no testimony to support it?

The 9th Circuit does nothing more than repeat the defense attorney argument at trial, and the jury rejected it.  The 9th Circuit did not hear the witnesses, did not judge their credibility, and the absence of the coroner had no influence on the jury. Another travesty.  

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