Earp v. Cullen, No. 08-99005 (10-19-10) (Tallman with Farris and Nelson). In this death penalty case, the 9th remands on the issue of prosecutorial misconduct. The district court had the case back on a remand to hold an evidentiary hearing on the matter of misconduct and IAC. In the former, the petitioner argued that a witness favorable to him had been intimidated by the prosecution. The petitioner wanted to call the victim's mother to relate the pressure she felt from the police. Appointed counsel, she invoked the Fifth, and the court allowed a blanket invocation. This was error. The 9th precludes blanket invocations of the Fifth, and the invocation here denied the petitioner a full and fair opportunity to develop the facts. The witness did not, as the State argues, face perjury; the statute had run. The 9th remanded to a different judge given that the court had made findings of credibility already, had sought to cut the hearing short, and was critical of the 9th having issued a stay so that petitioner could bring in witnesses. On the IAC claim, the 9th affirmed the denial. It held that trial counsel was not ineffective in its psychological evidence and in not presenting evidence of organic brain damage, if it existed, at that time. Counsel also was not ineffective in its mitigation investigation of the petitioner's background.

Congratulations to AFPDs Robert Gerstein, Statia Peakheart and Dean Gits of the FPD Office, C.D.Ca (Los Angeles) for the remand.