Monday, October 12, 2009

Case o' The Week: The Rain in Spain Falls Mainly On the Plain (Error Review): Rex Harrison, Prosecutorial Misconduct, and Assault

Rex Harrison (right), a charming gentlemen, a master of etiquette, infallibly polite in every respect, "the milk of human kindness by the quart in every vein." United States v. Rex Harrison, Slip. Op. 14403, 14407 (9th Cir. Oct. 9, 2009), decision available here.

Well, maybe the defendant Rex Harrison in this case isn't quite Henry Higgins -- but he still didn't deserve the trial he got in Hawaii. A slow week in the Ninth and an order amending an August opinion let's us stretch back a bit and take a closer look at this interesting case.

Players: Decision by Chief Judge Kozinski joined by Judge Callahan, partial dissent by Judge Bybee. Hard-fought case by Hawaii Federal Defender Peter Wolff (who was not, by the way, trial counsel).

Facts: “Because the majority neglects to set forth the facts, [Judge Bybee presents] them briefly.” Id. at 14414 (Bybee, J., dissenting). Military police encountered defendant Rex Harrison parked on restricted“Army Beach” in Oahu. Id. Accounts conflict on what happened next, but the officers said a drunk Harrison gave his ID then attempted to run away. Id. The officers testified that Harrison punched one of them and made frightening movements towards another, yelling profanities. Id. Harrison testified at trial and recounted harassment by the officers, with the officers starting the brawl. Id. at 14415. He was charged with two counts of assault.

While crossing Harrison the Special AUSA repeatedly asked the defendant to comment on the testimony of the government’s witnesses. Id. at 14417. The prosecutor also repeatedly vouched for the government witnesses. Id. at14408 (majority decision). The defense did not object to any of these errors at trial. Harrison was convicted of both counts of assault.

Issue(s): “Improper questioning was an organizational theme for the prosecutor’s entire cross-examination. The vouching was similarly patent.” Id. at 14408. Because, however, there was no trial objection, the question for the Ninth was whether the “prosecutors’ misconduct ‘affected the outcome of the district court proceedings.’” Id. at 14409 (quoting United States v. Olano, 507 U.S. 725. 734 (1993)).

Held: “Harrison must also show prejudice, and he hasn’t.” Id. at 14409. “Any prejudice from the vouching was also ameliorated by the judge’s belated curative instruction.” Id.

Of Note: In a persuasive dissent, Judge Bybee compares Harrison with two previous Ninth cases on prosecutorial misconduct, Geston and Combs. He correctly (we think) argues that the vouching and “second-order questions” were at least as extreme here. When one reads Judge Bybee’s more thorough account of the facts and his recounting of the outrageous prosecutorial misconduct at trial, it is shocking that both counts of conviction weren’t reversed.

How to Use: Though victory in Harrison was ultimately stolen by Olano plain error review, both the majority decision and the dissent are useful primers for the twin sins of “second-order” questions (asking a witness on cross to comment on the veracity of another witness, like a cop), and prosecutorial vouching. Mine the decision for good language on both errors. (Aside: both convictions would have almost certainly been reversed had there been objections at trial, and if the Ninth were not engaged in Olano plain error review on appeal. A useful reminder on the importance of objecting and preserving the appellate record).

The case also confirms an earlier Ninth Circuit holding on federal assault: physical intimidation alone will not always constitute assault – there needs to be proof of force or threat of force. Id. at 14411 (quoting United States v. Chapman, 528 F.3d 1215, 1222 (9th Cir. 2008)). Harrison and Chapman are two key, recent cases that merit a close read in any federal assault case.

For Further Reading: Harrison was sentenced to two years in prison for a drunken fistfight with a cop, was remanded when the verdict was returned, and this beach brawl conviction earned a press release from the Hawaii United States Attorney’s office (though there was no USAO press release when Chief Judge Kozinski lambasted the office for prosecutorial misconduct). For more on this case, including the SAUSA who tried it, visit an interesting article here.

Image of Rex Harrison, from My Fair Lady, from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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