Monday, September 28, 2020

Ford v. Peery (9th Cir. - Sept. 28, 2020)

"During closing argument, at the end of his rebuttal, the prosecutor told the jury that the presumption of innocence no longer applied. He said:

'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 crossexamine 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.'

The defense attorney objected, 'That misstates the law.' The court overruled the objection. The prosecutor resumed, 'And so we’re past that point.'" (emphases in original).

Is it okay to make that argument?

Judge Fletcher (joined by Judge Molloy, sitting by designation from Montana) says "No."  Judge Ryan Nelson says "Yes."

The majority also holds that the error was not harmless, even though the California Court of Appeal had held (in an unpublished opinion) that it was.  Here's a brief rundown of whey the panel thought it was not harmless:

“The weight of the evidence” against Ford was not great. . . . the evidence was circumstantial, incomplete, and in conflict. While there was some inculpatory evidence (the partial palm print, the stolen cell phones, Ford’s conversation with his girlfriend, and Ford’s Facebook post), no one saw the shooting. Neither of the two witnesses who had seen three young black men on the street shortly before the shooting could identify Ford. The manner of shooting hypothesized by the prosecutor conflicted with his expert’s testimony the gun had been at least three feet away from Martinez when it was fired. The hypothesized manner of shooting was also inconsistent with Johnson’s testimony that she heard the sound of a shot and broken glass, and with the fact that passenger side, rather than driver side, windows were shattered.

The jury clearly had trouble with the evidence. After four days of deliberations, they reported to the court that they were “hopelessly deadlocked.” The court sent them back to deliberate further. When the jury returned, their answer was internally inconsistent. It was uncontested that Martinez had been killed with a single shot to the head. Ford had been charged with shooting and killing Martinez. The jury found Ford guilty of the murder charge. But the jury was split with a vote of seven to five on whether Ford had used a firearm in killing Martinez.

The “prominence” of the prosecutor’s statements, id., could hardly have been greater. During the course of his closing argument, the prosecutor had repeatedly said that the state had the burden of proof to show guilt beyond a reasonable doubt. But then, at the end of his rebuttal in his closing argument, the prosecutor stated three times that the presumption of innocence no longer applied. The prosecutor’s rebuttal was the last thing the jury heard from either of the attorneys. The jury retired to begin deliberations later that same day.

Although the prosecutor did not “misstate[] the evidence,” id., he misstated the law. He did so three times, in the space of a few moments."

Judge Ryan Nelson disagreed on this point as well.  He thought that any error -- assuming that one existed (which he thinks there wasn't) -- was harmless.

The California Court of Appeal is itself split on whether it's permissible to make this argument.  One case says it's fine, the other case says it's error.

After today's Ninth Circuit opinion on habeas, I suspect you'll be seeing a lot less of the claim at closing argument that the presumption of innocence no longer applies.