Post by Anja Nieser on Sept 19, 2006 16:33:44 GMT -5
Did Victim's Photo Prejudice a Jury?----Another ruling by the
liberal-leaning 9th Circuit comes under Supreme Court review.
For Jim Studer, wearing a button with a photo of his brother, Tom, was a
simple way of bearing witness for him at the trial of Tom's accused
killer, Mathew Musladin.
"He was my big brother, and he was very protective of me when I was a
kid," Studer said.
Little did he think the buttons he and his parents wore to the trial in
San Jose would nearly free the man convicted of Tom's murder - or put the
killer's case before the Supreme Court. But he had not considered that
Musladin would someday have a chance to bring his case before the U.S. 9th
Circuit Court of Appeals.
For years, the Supreme Court has cast a critical eye on the
liberal-leaning 9th Circuit, particularly in cases involving crime and the
death penalty.
The justices will consider 2 of those cases soon after they return next
month.
On the 1st day of Musladin's trial more than a decade ago, Studer and his
parents, who had traveled from Missouri, sat in the front row of the
courtroom, directly behind the prosecutor. Each wore a button with a photo
of Tom.
Like the jury, they heard the facts of the case: On May 13, 1994, Musladin
arrived early at the home of his estranged wife, Pamela, to pick up their
3-year-old son for a weekend visit. The 2 exchanged angry words, and
Musladin threw her to the driveway.
When she called for help, her fiance, Tom Studer, and her brother, Michael
Albaugh, came running. Musladin had a .45caliber pistol in his car and
began shooting. Studer was hit in the back and crawled under a truck in
the garage to escape. Musladin followed him and shot again, hitting him in
the head and killing him.
Musladin also followed Albaugh into the house, but he hid in a bathroom.
Pamela escaped over the fence to another house. Musladin was captured
after a high-speed chase on U.S. 101.
When his case came to trial, Musladin claimed self-defense, saying that
Pamela and her fiance were drug users and that he had feared for his life.
The jury convicted him of 1st-degree murder and attempted murder, and he
was sentenced to 32 years to life in prison.
There matters stood until the 9th Circuit heard his appeal last year. The
26-member court hears cases - usually in 3-judge panels - from California
and eight other Western states. It has some decidedly liberal judges, and
Musladin's case came before two of them: Stephen Reinhardt of Los Angeles
and Marsha S. Berzon of San Francisco.
In a 2-1 decision, the judges reversed Musladin's conviction, saying that
the buttons worn by Studer's family deprived Musladin of a fair trial.
According to Reinhardt, the photo buttons - described by the prosecutor as
2 inches in diameter and by Musladin's lawyer as 3 to 4 inches - conveyed
a "specific message."
"The buttons essentially 'argue' that Studer was the innocent party and
that the defendant was necessarily guilty," Reinhardt said.
He continued: "A reasonable jurist would be compelled to conclude that the
buttons worn by Studer's family members conveyed the message that the
defendant was guilty."
That was not the view of the trial judge or the California state courts.
When a defense lawyer objected at the start of the trial and described the
buttons as "inappropriate," the judge disagreed: "There is no legend on
the buttons," he said. "I see no possible prejudice to the defendant."
It was noted that the prosecutor could have held up a photo of Studer for
the jury to see. Had he survived the shooting, the victim could have sat
in the courtroom himself.
The state appeals court also saw no harm.
"The simple photograph of Tom Studer was unlikely to have been taken as a
sign of anything other than the normal grief occasioned by the loss of a
family member," its judges wrote in upholding Musladin's conviction.
7 judges of the 9th Circuit objected to Reinhardt's opinion - seven fewer
than the majority needed for the full appeals court to review it.
"Musladin shall be released unless the state elects to retry him within 90
days," Reinhardt wrote in October 2005.
State prosecutors petitioned the U.S. Supreme Court, which voted to hear
the case. Oral arguments are set for Oct. 11.
It is 1 of 2 Reinhardt opinions that the justices will consider in the 1st
days of their new term.
The 2nd reversed a death sentence handed down in 1982 for a man who broke
into the home of a 21-year-old woman in the San Joaquin Valley, beat her
to death with a metal dumbbell, stole her stereo and sold it for $100.
When Fernando Belmontes was caught, his accomplices testified against him.
After his conviction, prosecutors told jurors of his violent past,
including a recent brutal assault on his pregnant girlfriend.
21 years after the jury sentenced Belmontes to die, his federal appeal
came before a three-judge panel that included Reinhardt and Richard A.
Paez of Los Angeles. In a 2-1 decision, they reversed the death sentence
on the grounds that jurors might not have taken into account "the
defendant's potential for a positive adjustment to life in prison."
California Atty. Gen. Bill Lockyer appealed that ruling to the Supreme
Court, which set it aside in a one-line order in March 2005. The justices
urged Reinhardt and Paez to reconsider their decision in light of a recent
high court ruling that restored the death sentence for an Orange County
murderer after it too had been reversed by the 9th Circuit.
In July 2005, the 2 appellate judges reaffirmed their original decision. 8
of their 9th Circuit colleagues dissented - again, short of the majority
required for the full court to consider the case.
When Lockyer appealed on behalf of San Quentin State Prison Warden Steven
W. Ornoski, the Supreme Court voted to hear the case of Ornoski vs.
Belmontes. It will be argued Oct. 3, the first morning of oral arguments
for the new term.
In the last term alone, the high court took up 18 cases from the 9th
Circuit and reversed 15 of them.
In the Supreme Court, "there is almost a palpable skepticism for what
comes out of the 9th Circuit," said Vikram Amar, a professor at UC
Hastings College of the Law in San Francisco.
"They don't have any faith that Reinhardt calls it straight. I don't want
to call him a bad judge, but a lot of these decisions are hard to
understand," added Amar, who was a clerk for the 9th Circuit and the
Supreme Court.
Nominated to the 9th Circuit by President Carter in 1980, Reinhardt has
described himself as one of the last unabashed liberals on the federal
bench. When asked once whom he most admired as a judge, he named the late
Justice William J. Brennan Jr., the liberal leader of the Supreme Court
during the 1970s and 1980s.
Brennan "had a broad and generous, rather than a cramped and niggardly,
view of the law . and he understood that the ultimate role of the law was
to serve the interests of justice," Reinhardt said in a 2004 interview on
Howard J. Bashman's legal blog, "How Appealing." Asked about the current
high court, Reinhardt said it was "a straight, unabashed, highly
conservative institution."
Conservatives regularly point to Reinhardt, 75, as a "liberal activist" on
the bench. He formed part of the 2-1 majority that ruled the words "under
God" in the Pledge of Allegiance were unconstitutional. He also wrote an
opinion for the full 9th Circuit ruling that dying people had a right to
lethal medication supplied by a physician. The Supreme Court reversed this
opinion unanimously in 1997 and said the "right to die" issue should be
decided by states and their elected legislators.
10 years ago, complaints about the 9th Circuit spurred Congress to rein in
the authority of federal judges to review state criminal convictions in
cases that raised constitutional issues. The Anti-Terrorism and Effective
Death Penalty Act of 1996 says federal judges should defer to state courts
and may not reverse a criminal conviction or prison term that has been
upheld by a state court unless the decision obviously conflicts with
"clearly established federal law as determined by the Supreme Court."
Backers of the law said it was aimed directly at the 9th Circuit. These
days, however, its supporters admit that the change has not worked as
planned.
"The deference standard has not been effective. The 9th Circuit strains
and goes around it," said Kent S. Scheidegger, legal director of the
Criminal Justice Legal Foundation in Sacramento. "The Musladin case is an
example of just that. It reflects an egregious disregard for the limit
that Congress set."
What "clearly established law" was violated when the trial judge let the
Studer family wear buttons with a photo of Tom in the courtroom?
In his decision, Reinhardt pointed to the Supreme Court's 1976 ruling in
Estelle vs. Williams. In that case, the justices said it would be unfair
to require a criminal defendant to wear jail clothes during his trial
because that could cause the jury to infer that he was guilty.
"We conclude that no significant difference exists between the
circumstances of this case" involving the buttons worn by the family and
putting a defendant in jail clothes, Reinhardt said.
State lawyers were quick to note a significant difference: The first
involved a defendant who was on trial; the second involved spectators in a
courtroom.
Victims' rights groups were disturbed when Reinhardt used quote marks
around the word "victim" in his Musladin ruling. For example, he said the
case posed the issue of "when spectators are permitted to wear buttons
depicting the 'victim.' " (A revised version of his ruling does not
include such references.)
"That was very troubling. There is no dispute that someone was shot and
died," said Meg Garvin, a program director at the National Crime Victim
Law Institute in Portland, Ore. "The underlying issue is the right of the
crime victim to be in the court. We don't understand how the mere image of
the victim can be prejudicial."
The group filed a friend-of-the-court brief urging the high court to
reverse the 9th Circuit's decision.
Jim Studer, a school administrator from Reno, Nev., said he had not come
to grips with the notion that wearing a button with his brother's picture
could result in a reversal of the killer's conviction.
"We wore it for the first two days only," he said. After defense lawyers
objected, he said, the family decided to take off the buttons.
However, Musladin's family said the buttons were worn for the entire
14-day trial, and the appellate judges accepted that.
"I couldn't believe it when I heard about the decision" of the 9th
Circuit, Studer said. "It still seems unfathomable to me that you can't
have a picture of the victim in the courtroom."
(source: Los Angeles Times)
liberal-leaning 9th Circuit comes under Supreme Court review.
For Jim Studer, wearing a button with a photo of his brother, Tom, was a
simple way of bearing witness for him at the trial of Tom's accused
killer, Mathew Musladin.
"He was my big brother, and he was very protective of me when I was a
kid," Studer said.
Little did he think the buttons he and his parents wore to the trial in
San Jose would nearly free the man convicted of Tom's murder - or put the
killer's case before the Supreme Court. But he had not considered that
Musladin would someday have a chance to bring his case before the U.S. 9th
Circuit Court of Appeals.
For years, the Supreme Court has cast a critical eye on the
liberal-leaning 9th Circuit, particularly in cases involving crime and the
death penalty.
The justices will consider 2 of those cases soon after they return next
month.
On the 1st day of Musladin's trial more than a decade ago, Studer and his
parents, who had traveled from Missouri, sat in the front row of the
courtroom, directly behind the prosecutor. Each wore a button with a photo
of Tom.
Like the jury, they heard the facts of the case: On May 13, 1994, Musladin
arrived early at the home of his estranged wife, Pamela, to pick up their
3-year-old son for a weekend visit. The 2 exchanged angry words, and
Musladin threw her to the driveway.
When she called for help, her fiance, Tom Studer, and her brother, Michael
Albaugh, came running. Musladin had a .45caliber pistol in his car and
began shooting. Studer was hit in the back and crawled under a truck in
the garage to escape. Musladin followed him and shot again, hitting him in
the head and killing him.
Musladin also followed Albaugh into the house, but he hid in a bathroom.
Pamela escaped over the fence to another house. Musladin was captured
after a high-speed chase on U.S. 101.
When his case came to trial, Musladin claimed self-defense, saying that
Pamela and her fiance were drug users and that he had feared for his life.
The jury convicted him of 1st-degree murder and attempted murder, and he
was sentenced to 32 years to life in prison.
There matters stood until the 9th Circuit heard his appeal last year. The
26-member court hears cases - usually in 3-judge panels - from California
and eight other Western states. It has some decidedly liberal judges, and
Musladin's case came before two of them: Stephen Reinhardt of Los Angeles
and Marsha S. Berzon of San Francisco.
In a 2-1 decision, the judges reversed Musladin's conviction, saying that
the buttons worn by Studer's family deprived Musladin of a fair trial.
According to Reinhardt, the photo buttons - described by the prosecutor as
2 inches in diameter and by Musladin's lawyer as 3 to 4 inches - conveyed
a "specific message."
"The buttons essentially 'argue' that Studer was the innocent party and
that the defendant was necessarily guilty," Reinhardt said.
He continued: "A reasonable jurist would be compelled to conclude that the
buttons worn by Studer's family members conveyed the message that the
defendant was guilty."
That was not the view of the trial judge or the California state courts.
When a defense lawyer objected at the start of the trial and described the
buttons as "inappropriate," the judge disagreed: "There is no legend on
the buttons," he said. "I see no possible prejudice to the defendant."
It was noted that the prosecutor could have held up a photo of Studer for
the jury to see. Had he survived the shooting, the victim could have sat
in the courtroom himself.
The state appeals court also saw no harm.
"The simple photograph of Tom Studer was unlikely to have been taken as a
sign of anything other than the normal grief occasioned by the loss of a
family member," its judges wrote in upholding Musladin's conviction.
7 judges of the 9th Circuit objected to Reinhardt's opinion - seven fewer
than the majority needed for the full appeals court to review it.
"Musladin shall be released unless the state elects to retry him within 90
days," Reinhardt wrote in October 2005.
State prosecutors petitioned the U.S. Supreme Court, which voted to hear
the case. Oral arguments are set for Oct. 11.
It is 1 of 2 Reinhardt opinions that the justices will consider in the 1st
days of their new term.
The 2nd reversed a death sentence handed down in 1982 for a man who broke
into the home of a 21-year-old woman in the San Joaquin Valley, beat her
to death with a metal dumbbell, stole her stereo and sold it for $100.
When Fernando Belmontes was caught, his accomplices testified against him.
After his conviction, prosecutors told jurors of his violent past,
including a recent brutal assault on his pregnant girlfriend.
21 years after the jury sentenced Belmontes to die, his federal appeal
came before a three-judge panel that included Reinhardt and Richard A.
Paez of Los Angeles. In a 2-1 decision, they reversed the death sentence
on the grounds that jurors might not have taken into account "the
defendant's potential for a positive adjustment to life in prison."
California Atty. Gen. Bill Lockyer appealed that ruling to the Supreme
Court, which set it aside in a one-line order in March 2005. The justices
urged Reinhardt and Paez to reconsider their decision in light of a recent
high court ruling that restored the death sentence for an Orange County
murderer after it too had been reversed by the 9th Circuit.
In July 2005, the 2 appellate judges reaffirmed their original decision. 8
of their 9th Circuit colleagues dissented - again, short of the majority
required for the full court to consider the case.
When Lockyer appealed on behalf of San Quentin State Prison Warden Steven
W. Ornoski, the Supreme Court voted to hear the case of Ornoski vs.
Belmontes. It will be argued Oct. 3, the first morning of oral arguments
for the new term.
In the last term alone, the high court took up 18 cases from the 9th
Circuit and reversed 15 of them.
In the Supreme Court, "there is almost a palpable skepticism for what
comes out of the 9th Circuit," said Vikram Amar, a professor at UC
Hastings College of the Law in San Francisco.
"They don't have any faith that Reinhardt calls it straight. I don't want
to call him a bad judge, but a lot of these decisions are hard to
understand," added Amar, who was a clerk for the 9th Circuit and the
Supreme Court.
Nominated to the 9th Circuit by President Carter in 1980, Reinhardt has
described himself as one of the last unabashed liberals on the federal
bench. When asked once whom he most admired as a judge, he named the late
Justice William J. Brennan Jr., the liberal leader of the Supreme Court
during the 1970s and 1980s.
Brennan "had a broad and generous, rather than a cramped and niggardly,
view of the law . and he understood that the ultimate role of the law was
to serve the interests of justice," Reinhardt said in a 2004 interview on
Howard J. Bashman's legal blog, "How Appealing." Asked about the current
high court, Reinhardt said it was "a straight, unabashed, highly
conservative institution."
Conservatives regularly point to Reinhardt, 75, as a "liberal activist" on
the bench. He formed part of the 2-1 majority that ruled the words "under
God" in the Pledge of Allegiance were unconstitutional. He also wrote an
opinion for the full 9th Circuit ruling that dying people had a right to
lethal medication supplied by a physician. The Supreme Court reversed this
opinion unanimously in 1997 and said the "right to die" issue should be
decided by states and their elected legislators.
10 years ago, complaints about the 9th Circuit spurred Congress to rein in
the authority of federal judges to review state criminal convictions in
cases that raised constitutional issues. The Anti-Terrorism and Effective
Death Penalty Act of 1996 says federal judges should defer to state courts
and may not reverse a criminal conviction or prison term that has been
upheld by a state court unless the decision obviously conflicts with
"clearly established federal law as determined by the Supreme Court."
Backers of the law said it was aimed directly at the 9th Circuit. These
days, however, its supporters admit that the change has not worked as
planned.
"The deference standard has not been effective. The 9th Circuit strains
and goes around it," said Kent S. Scheidegger, legal director of the
Criminal Justice Legal Foundation in Sacramento. "The Musladin case is an
example of just that. It reflects an egregious disregard for the limit
that Congress set."
What "clearly established law" was violated when the trial judge let the
Studer family wear buttons with a photo of Tom in the courtroom?
In his decision, Reinhardt pointed to the Supreme Court's 1976 ruling in
Estelle vs. Williams. In that case, the justices said it would be unfair
to require a criminal defendant to wear jail clothes during his trial
because that could cause the jury to infer that he was guilty.
"We conclude that no significant difference exists between the
circumstances of this case" involving the buttons worn by the family and
putting a defendant in jail clothes, Reinhardt said.
State lawyers were quick to note a significant difference: The first
involved a defendant who was on trial; the second involved spectators in a
courtroom.
Victims' rights groups were disturbed when Reinhardt used quote marks
around the word "victim" in his Musladin ruling. For example, he said the
case posed the issue of "when spectators are permitted to wear buttons
depicting the 'victim.' " (A revised version of his ruling does not
include such references.)
"That was very troubling. There is no dispute that someone was shot and
died," said Meg Garvin, a program director at the National Crime Victim
Law Institute in Portland, Ore. "The underlying issue is the right of the
crime victim to be in the court. We don't understand how the mere image of
the victim can be prejudicial."
The group filed a friend-of-the-court brief urging the high court to
reverse the 9th Circuit's decision.
Jim Studer, a school administrator from Reno, Nev., said he had not come
to grips with the notion that wearing a button with his brother's picture
could result in a reversal of the killer's conviction.
"We wore it for the first two days only," he said. After defense lawyers
objected, he said, the family decided to take off the buttons.
However, Musladin's family said the buttons were worn for the entire
14-day trial, and the appellate judges accepted that.
"I couldn't believe it when I heard about the decision" of the 9th
Circuit, Studer said. "It still seems unfathomable to me that you can't
have a picture of the victim in the courtroom."
(source: Los Angeles Times)