Sunday, May 07, 2006

Case o' The Week: Mason hits brick wall in Bruton, Crawford habeas

Judge Michael Daly Hawkins is not just standing on a corner in Winslow Arizona (left); he’s busy penning a new habeas decision on Sixth Amendment rights. Mason v. Yarborough, __ F.3d __, 06 Cal. Daily Op. Serv. 5101 (9th Cir. May 5, 2006), decision available here. (More on Winslow below).
In Mason, the Ninth finds no Bruton/Crawford error when contents of an accomplice’s statements not admitted into evidence . . . just fact of statement (and subsequent arrest).

Players: Opinion by Judge Michael Hawkins.

Facts: Mason filed for habeas review of a state first degree murder conviction. 06 Cal. Daily Op. Serv. at 5103. After drive-by shootings, an accomplice – “Fenton” – was arrested by the sheriff, interrogated for seven hours, then arrested. Id. at 5015. Those facts – the interrogation and arrest of Fenton – came in during Mason’s trial. Id. The content of Fenton’s statements did not. Id.

Issue(s): “Specifically, [Mason] claims that the admission of the fact of Fenton’s statement, under these circumstances, was essentially the same as admitting its content, thus violating the clearly established principle of Bruton v. United States, 391 U.S. 123 (1968), that the admission of a non-testifying codefendant’s ‘powerfully incriminating extrajudicial statement’ violates a defendant’s Sixth Amendment right to confront his accuser.” Id. at 5105-06.

Held: Bruton’s protection, however, does not extend to all such statements. Richardson . . . specifically exempts a statement, not incriminating on its face, that implicates the defendant only in connection to other admitted evidence. On the other hand, the mere removal of a codefendant’s name from a statement that obviously refers to the defendant, does not insulate the statement from Bruton scrutiny. Gray . . . The statement here seems closer to Richardson than Gray for at least two reasons. First, Fenton’s statement . . . does not mention Mason at all. In fact, because its content never came into evidence, as far as the jury was concerned, it mentioned no one at all. For all the jury knew, Fenton confessed to his own involvement in the shootings and was arrested. Second, as Gray itself notes, the facts that would have allowed the jury to infer that Fenton’s statement implicated Mason came through other, properly admitted evidence . . . .” Id. at 5106 (citations omitted).

Of Note: In a convincing dissent, Judge Wallace observes that there can be no Crawford error when actual statements are not introduced into evidence. Id. at 5109. For Wallace, this should end the habeas inquiry. Wallace worries the majority’s Bruton analysis is misplaced because, in this case, Fenton was not a co-defendant of petitioner Mason: Mason was tried by himself. Id. at 5111-12. He warns, “The majority’s application of Richardson would appear to be squarely at odds with Crawford by potentially allowing testimonial statements to be admitted without cross-examination against a defendant tried separately, as long as the statement was not facially incriminating.” Id. at 5112.

How to Use: Mason is trouble for two important areas of Sixth Amendment law: Bruton and Crawford. It is, however, a habeas case. As such, maybe one can distinguish direct federal cases. While, in Mason, there was no “clearly established” Supreme Court law that required habeas relief, on a direct federal action the Circuit can nonetheless find that the Sixth Amendment precludes admitting similar evidence in a direct federal case. (A Circuit can more easily extend constitutional law to like facts in a direct federal case than under AEDPA in habeas actions).

For Further Reading: Judge Michael Daly Hawkins is a former Marine and former US Attorney who was appointed by Clinton. See article here. Although he is a Clinton appointee, he is generally considered more “moderate” than some of his fellow Marines in the Ninth (Tashima, Pregerson). He was standing in a corner in Winslow Arizona when he met his wife – a girl my lord, in a flatbed Ford. (Or something close to that happened; Hawkins was born and raised in Winslow). Id. Like Arizona Defender Jon Sands, he is a passionate Diamondbacks fan. Id.

Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.0rg


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