I kind of really like this Ninth Circuit stuff.
Last Thursday (12/9), the Ninth Circuit granted habeas relief to a non-capital habeas petitioner in a case called Ortiz v. Yates. The issue in the case was whether petitioner’s right to confront the witnesses against him was violated when the court precluded petitioner from questioning the complainant, a/k/a his wife, about whether she was “afraid to deviate from her initial incriminating statement because of threats allegedly made against by the prosecutor.”
A two-judge majority concluded that the California state court’s decision upholding that curtailment of cross-examination was an objectively unreasonable application of the Supreme Court’s decision in Michigan v. Lucas. And the error itself had a substantial and injurious effect on the verdict because the wife’s testimony was “a ‘central, indeed crucial’ witness for the prosecution.” The majority reversed the district court’s denial of the petition. The dissenting judge concluded that, even if error, it was nothing but harmless.
Here are some observations: always good to see a court still willing to grant a petition under the “unreasonable application” prong of the § 2254(d) standard of review, even in the face of the daunting Richter standard.
And this particular constitutional issue – whether there was an arbitrary or disproportionate restriction on a defendant’s ability to cross-examine adverse witnesses as to their biases or motives for testifying – seems to be one that the Ninth Circuit takes particularly seriously. In fact, this is the second habeas grant this year on this particular issue (curtailment of right to confront/violation of right to present a defense). The other was in Jackson v. Nevada.* And, as noted in the opinion, the court has granted two other habeas petitions within the past few years on this issue (Holley v. Yarborough and Fowler v. Sacramento Cnty. Sheriff’s Dept.). In other words, keep an eye out for that type of claim.
* D/D my office represents the petitioner in that case.
I guess, as I have written before, it's important to note that all circuit court habeas grants face the real prospect of a summary reversal. Let's see if the State gets any traction in the Supreme Court on this one. I am going to go out on a limb and say they won't, particularly because the dissent focuses mainly on the question of harmless error. Or maybe we should brace ourselves for a whole new type of summary reversal -- the "all constitutional errors are harmless in habeasland" summary reversal. Would not be surprised to see it at this point.