Monday, October 13, 2008

Case o' The Week: Right on Cue, Bybee Gets Confrontational

In a very good decision, Judge Bybee explains the application of the Confrontation Clause -- and mulls over the differences between cue balls and pool balls along the way. Slovik v. Yates, __ F.3d __, 2008 WL 4459083 (9th Cir. Oct. 6, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges Canby and Kleinfeld.

Facts: Slovik, drunk, got into a bar brawl. Id. at *1. He tussled with the bartender, did backflips through the bar (?!?) and – most importantly – threw cue balls (or maybe pool balls) – at witness Featherstone (or maybe not). Id. & n.2. Whatever type of balls were thrown, no one was hit by them. Id.

Slovik went to trial at got 40 to life. Id. at *2. (Three Strikes in action). Id. Appeals and state and federal habeas petitions went nowhere: the habeas ultimately came to the Ninth. Id. at *3.

At trial, Slovik’s attorney asked the State’s central witness, Featherstone, whether he was currently on probation. Id. at *2. “No,” answered Featherstone. Id. Slovik’s attorney had a form that showed Featherstone was actually on five years of probation at the time for a DUI. The trial judge, however, shut down the cross because it would “be too time consuming.” Id.

Issue(s): Slovik contends “that his confrontation clause rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when a California trial court prevented him from asking questions on cross-examination that would establish that one of the prosecution’s key witnesses had likely lied under oath.” Id. at *1.

Held: “For the reasons explained below, we agree that Slovik was denied his confrontation rights and that the right was clearly established; accordingly, we reverse.” Id.

Of Note: One unintended consequence of Three Strikes laws is that suspects facing their third strike are more likely to react violently when approached by police officers. See Carlisle Moody, Thomas Marvell, Robert Kaminski, Unintended Consequences: Three Strikes Laws and the Murders of Police Officers, Nat’l Institute of Justice, 2002, available here.

Is another unintended consequence more-vigorous federal habeas review of Three Strike convictions that carry these draconian sentences? Of course, it goes without saying that the Slovik panel undoubtably viewed this case from a purely legal perspective, and surely would have reached the same result if Slovik had received an eighteen month sentence for a simple assault conviction. Still . . . there’s much talk in this opinion of Slovik’s “40 years to life” sentence – a fact that (technically) isn’t relevant to the confrontation clause analysis.

Equity still speaks, albeit quietly.

How to Use: There’s much to like in Slovik, and many useful quotes for cross-examination battles. One helpful reminder is that the confrontation clause analysis focuses on the one witness at issue, not the gestalt of the whole trial. Id. at *5. Here, the State complained that none of its witnesses were “picked from a Sunday school choir,” so any limitations on the Featherstone impeachment didn’t significantly alter the jury’s view of his credibility. Id.

Not so, countered the Ninth, because problems with other witnesses “bears no relevance in the confrontation clause analysis, which asks whether impeaching Featherstone would have produced a significantly different impression of Featherstone’s credibility.”
Id. As the Court emphasized (quoting the Supremes in Van Arsdall), “the focus of the Confrontation Clause is on individual witnesses and thus the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not the outcome of the entire trial.” Id.

Harmless error remains a hurdle on appeal, but for the trial court, Slovik’s emphasis on confronting the individual witness is a handy quote to have on hand when a judge tries to shut down defense cross-examination.

For Further Reading: One of the Ninth’s Big Issues of late has been the Confrontation Clause. For a blog on the lead case on this critical subject, visit our blog here (discussing en banc Larson decision).

Steven Kalar, Senior Litigator N.D. Cal. F.P.D. Website at

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Anonymous Anonymous said...

Isn't this the same Bybee of the Bybee/Yoo memos that attempted to make it legal for the U.S. military and CIA to use torture against those labeled as terrorists and enemy combatants, however not legally charged for anything nor any evidence gathered objectively?

Saturday, November 08, 2008 11:13:00 PM  
Anonymous Anonymous said...

Yes. This is the same person who's memo approved the use of enhanced interrogation techniques, i.e., waterboarding, etc.

Sunday, December 07, 2008 11:49:00 AM  

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