Deck v. Jenkins, No. 13-55130 (9th Cir. 2014)
Annotate this CasePetitioner, convicted in state court of one count of an attempted lewd act upon a child under the age of 14, sought review of the district court's dismissal of his 28 U.S.C. 2254 petition. Petitioner alleged that the prosecutorial misstatements during rebuttal closing argument deprived him of a fair trial. The court concluded that the prosecutor's misstatements were not inadvertent or isolated. Rather, it is clear that the erroneous assertions of law in the prosecutor's closing rebuttal argument were not mere "stray words," and that they were a direct response to the central theory of petitioner's case. Further, the trial court did not correct the prosecutor's misstatements and the evidence concerning the temporal aspect of petitioner's intent was not overwhelming. The court expressed grave doubt as to whether the error had a substantial or injurious effect or influence on the jury's verdict. Accordingly, the court reversed and remanded with instructions.
Court Description: Habeas Corpus. The panel reversed the district court’s dismissal of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction of an attempted lewd act upon a child under the age of 14, and remanded for further proceedings. The panel took as established that prosecutorial error occurred, where the California Court of Appeal decided that the prosecutor, in closing argument, negated an essential element of intent under California law by “pushing defendant’s intent to commit a lewd act on ‘Amy’ to, potentially, ‘next week,’ or in ‘two weekends’ or to ‘just some point in the future.’” The California Court of Appeal concluded that the misstatements were not prejudicial. The panel found itself in virtual equipoise as to the harmlessness of the error, where the comments were not inadvertent or isolated and went to the heart of the defense, the lawyers’ diametrically opposed statements of the law in closing arguments confused the jury, a corrective instruction was not given, the jury’s request for clarification was not answered, and the written jury instructions did not address the subject of the jury’s confusion; and where the panel could not say that there was overwhelming evidence that the defendant intended to commit a lewd act on the specific night in question. The panel concluded that the prosecutor’s misstatements amounted to constitutional trial error under clearly established federal law as determined by the Supreme Court, and had grave doubt as to whether the error had a substantial and injurious effect or influence on the jury’s verdict. Dissenting, Judge M. Smith wrote that the majority flouts clear Supreme Court AEDPA precedent in order to justify its holding that a state court’s decision is incorrect.
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