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Ninth Circuit:
DDA’s Remarks on Innocence Presumption Doesn’t Require Issuance of Habeas Relief
Earlier Contrary Opinion Is Repudiated; Panel Bows to Court of Appeal Determination
By a MetNews Staff Writer
A judge of the Ninth U.S. Circuit Court of Appeals and a District Court judge sitting there by designation yesterday backed down from their Sept. 28 opinion declaring that a due process violation occurred when a prosecutor told the jury that the point had been reached where the presumption of innocence no longer existed, requiring habeas corpus relief for a man convicted of first-degree murder.
The earlier opinion—which reversed the denial of a habeas petition by District Court Judge Morrison C. England Jr. of the Eastern District of California—was authored by Circuit Judge William A. Fletcher and concurred in by District Court Judge Donald W. Molloy of the District of Montana. Circuit Judge Ryan D. Nelson dissented.
Fletcher said in the Sept. 28 opinion:
“We answer two principal questions. First, in overruling the objection to the prosecutor’s statements that the presumption of innocence no longer applied did the California Superior Court violate due process…? Second, was the California Court of Appeal objectively unreasonable in holding that any error was harmless beyond a reasonable doubt…? We answer ‘yes’ to both questions.”
Retrial Permitted
The opinion decreed:
“We reverse the decision of the district court and remand with instructions to conditionally grant the writ, subject to the State’s retrying Ford within a reasonable time not to exceed 180 days.”
Following a rehearing, Fletcher declared yesterday, with Molloy again concurring:
“We conclude that the prosecutor’s repeated statements to the jury during final argument that the presumption of innocence no longer applied were misstatements of clearly established law as articulated by the Supreme Court. We defer, however, to the state court’s finding…that there was not a reasonable probability of a different outcome had the prosecutor not misstated the law.”
Nelson partially concurred and partially dissented.
Prosecutor’s Remarks
The opinions come in the case of Keith Ford who was tried and convicted in Solano Superior Court in 2012. In closing argument, the prosecutor told the jury:
“This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where ... he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.” Div. Five of the First District Court of Appeal affirmed the conviction on Sept. 10, 2014 in an unpublished opinion. With respect to the prosecutor’s remarks, it said:
“[W]e conclude any assumed error is harmless under either the state…or federal constitutional standard….”
The California Supreme Court denied review.
Revised Opinion
In yesterday’s opinion, Fletcher stuck to the view that the prosecutor misstated the law, but deferred to the Court of Appeal’s determination that the error was harmless. He wrote:
“Because the California Court of Appeal assumed without deciding that the prosecutor misstated the law, there is no state-court decision to which we can defer on this point. However, even if there were a state-court decision holding that the prosecutor did not misstate the law, we would conclude that such a holding would have been unreasonable. In stating that the presumption of innocence was “over,” the prosecutor misstated clear and long-standing federal law as articulated in a number of Supreme Court decisions. A jury must evaluate the evidence based on the presumption that the defendant is innocent. If the jury concludes beyond a reasonable doubt that the defendant is guilty, then—and only then-—docs the presumption disappear.” He went on to say, however, that under the Antiterrorism and Effective Death Penalty Act of 1996, a federal court must accord deference to a state court’s “adjudication on the merits,” which, Fletcher noted, would include a determination of prejudice.
“We are therefore required to give deference to the decision of the Court of Appeal that the prosecutor’s misstatements were harmless…,” he declared.
Nelson’s View
Nelson commented:
“Today is a somber day of justice for Ruben Martinez, an innocent young man with a full life ahead of him who was ruthlessly murdered. Petitioner Keith Ford was convicted of first degree felony murder of Martinez by a jury of his peers. The majority first held that Ford’s petition for habeas relief should be granted. On rehearing, the majority reverses course. As a result. Ford remains legally accountable for Martinez’s murder.
“It is unusual, but not unheard of, for a panel majority to concede error on rehearing….For a panel majority to publicly recognize and correct its error requires a healthy dose of judicial humility. Ultimately, the art of good judging is tethering so closely to the rule of law and the Constitution that personal beliefs do not dictate the outcome of any issue or case. That ideal of judging, simple in theory, can test even veteran judges. But this ideal reflects the noblest role of an Article III judge. And, by reversing itself, the majority may avoid yet another reversal in our misapplication of deference under the Antiterrorism and Effective Death Penalty Act….”
He added, however that “the majority, even in its reversal on rehearing, is only half noble,” challenging the appropriateness of addressing the issue, at all. Nelson said he would have denied a certificate of appealability (“COA”).
Rule 22 of the Federal Rules of Appellate Procedure provides that “[i]n a habeas corpus proceeding in which the detention complained of arises from process issued by a state court…, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability.”
Nelson maintained that there is no Supreme Court decision which renders the prosecutor’s comments to the jury a constitutional violation, and commented:
“[T]he majority still errs on rehearing in failing to grapple with the context of the prosecutor’s statements and in finding legal error sufficient to support a due process violation. We should not have granted the COA merely to affirm the state court’s harmlessness finding.”
The case is Ford v. Peery, 18-15498.
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