ND Cal AFPD David Fermino earns a great habeas victory in Musladin v. Larmarque, __ F.3d __, 2005 WL 797565 (9th Cir. April 8, 2005), available here. In Musladin, Judge Reinhardt grants the writ when a defendant convicted of murder is tried while the "victim's" family is in the front row of the gallery, wearing photos of the deceased. The case is of particular interest for its discussion of "inherent prejudice" in this setting.
Players: ND Cal. AFPD David Fermino and R&W Attorney Chris Miles, with a great win on a serious case.
Facts: Musladin was charged and convicted after trial in California state court for the first degree murder of his estranged wife’s fiancé. 2005 WL 797565, *1. There was no dispute that Musladin hit the victim with a ricochet shot, although Musladin claimed perfect and imperfect self-defense. Id. During the trial the "victim’s" family sat in the front row of the gallery – behind the prosecution – and, on each day, at least three family members wore large buttons with noticeable pictures of the "victim." Id. The judge permitted the family to wear the buttons over defense objection. Id.
Issue(s): "In order to determine whether Musladin is entitled to federal habeas relief, we must therefore assess whether the buttons depicting [the victim] worn by spectators at the trial posed a risk of impermissible factors coming into play that is similar to those previously found to exist in other circumstances, such as in compelling a criminal defendant to wear prison garb and shackles before the jury, see Estelle v. Williams, 425 U.S. 501 (1976), and in permitting spectators at a rape trial to wear anti-rape buttons, see Norris v. Risley, 918 F.2d 828 (9th Cir.1990)." Id. at *3.
Held: "Because we conclude that no significant difference exists between the circumstances of this case and the "unacceptable risks" found to exist in Williams and Norris, we hold that the state court unreasonably applied established Supreme Court law in denying Musladin relief." Id. at *3.
Of Note: In dismissing the analysis of the state court, the Ninth Circuit articulated a favorable approach towards determining whether a defendant is prejudiced by the introduction of external factors (such as buttons or signs):
"The Supreme Court announced in Williams and Flynn that following a finding of an unacceptable risk of impermissible factors coming into play, no further showing is necessary because the practice is then deemed "inherently prejudicial." Here, the state court flouted that rule: it required that the challenged practice not only constitute an unacceptable risk of an impermissible factor coming into play but also that it "brand" the defendant with an "unmistakable mark of guilt." This additional test imposes too high and too unreasonable a burden on defendants and is contrary to established Supreme Court law." Id. at *6 (emphasis added).
Aside: Note that in the opinion Reinhardt places the word "victim" in quotations, in explicit deference to Musladin’s self-defense theory. Id. at *1. Would that we had this type of objectivity in every case.
How to Use: The Court articulates a favorable approach for Williams-Flynn issues where "outside influences" threatens a fair trial – if the outside influence creates an "unacceptable risk of impermissible factors coming into play," there is inherent prejudice. Moreover, even if that isn’t the case, a defendant can still try to show actual prejudice. Look to the gallery to spot Williams-Flynn issues: victims’ families with buttons, many cops in uniforms, and potentially banners and signs of protestors outside the courthouse.
For Further Reading: Fermino’s case has received national notoriety. See NY Times article here. District Attorney Ray Mendoza, who prosecuted Musladin in 1995, is already threatening to try the defendant again. See Monterey Herald article here.
Steven Kalar, Senior Litigator ND Cal FPD, website available here.