Sunday, December 07, 2008

Case o' The Week: Ninth Reverses Death Penalty for Prosecutorial Misconduct, Sechrest

Pregerson, Berzon, and Fletcher: oh my. What happens when a death penalty case involving "flagrant" prosecutorial misconduct comes before this panel of the former -- and future -- Lions of the Left?

Sechrest v. Ignacio, __ F.3d __, 2008 WL 5101988 (9th Cir. Dec. 5, 2008), decision available here.

Big win by Las Vegas, Nevada Defender Franny Forsman, and AFPDs Tiffany Murphy and Michael Pescetta.

Facts: Sechrest murdered two young girls and was convicted in a Nevada trial in ‘83. Id. at *1-*2. During voir dire, the prosecutor made two (false) statements about the possibility of release even with an LWOP sentence. Id. at *2. During penalty phase closing arguments, the prosecutor made two more (false) statements about the ability of a defendant to be released despite an LWOP sentence. Id. at *3. The jury returned death penalty verdicts for each murder. Id. at *4. Sechrest brought appeals and habeas petitions: this was his third petition (in a pre-AEDPA) case. Id. at *5-*6.

Issue(s): “Sechrest argues that the prosecutor’s statements regarding the likelihood of Sechrest’s release from prison by parole misled the jury and violated his Sixth and Fourteenth Amendment due process right to a fair trial.” Id. at *11.

Held: “After examining the entire record, we hold that the prosecutor's repeated misstatements regarding the likelihood of Sechrest's release from prison by parole were he to be sentenced to life without the possibility of parole violated Sechrest's due process right to a fair trial, and that the violation had substantial and injurious effect on the jury's sentencing decision, carried out by the trial judge, to impose the death penalty. Accordingly, Sechrest must be resentenced.” Id. at *12.

Of Note: This decision focuses on prosecutorial misconduct, but there’s a wacky side-issue about a defense shrink who examined the defendant. The defense did not call this doc. With defense permission the prosecutor then used this shrink during the penalty phase. The “defense” doc testified that Sechrest was an “incurable sociopath” who had a “callous disregard for human life.” Id. at *16.

(Self-evident) practice note: allowing a prosecutor within a mile of a defense shrink who uses phrases like “incurable sociopath” is “ineffective assistance of counsel.” Id. at *16 & n.12, *18 (“[D]efense counsel had absolutely no obligation to disclose Dr. Gerow’s confidential report to the prosecution.”)

How to Use: Sechrest is useful outside of the habeas context for its stern language on prosecutorial misconduct. First, Judge Pregerson explains that the prosecutor’s lies about Sechrest’s likely ultimate release from prison “constituted improper testimony.” Id. at *13. Three aspects of these arguments made them particularly dangerous: they were extrinsic to the case, they were false, and they were buttressed by the prestige of the prosecutor’s official position. Id. “By vouching for the truthfulness of his own unsupported, inaccurate assertions, the prosecutor committed flagrant misconduct.” Id. at *14.

Calling the defense a “fraud” and putting the “burden” of danger to future children on the shoulders of the jury was taboo, too: “Bottom line: the prosecutor misled the jurors to believe that if they did not impose the death penalty, Sechrest could be released on parole and would kill again. In making his erroneous assertions, the prosecutor gave improper testimony, used his position as an attorney ‘for the people’ to vouch for that improper testimony, and most likely inflamed the passions of the jury.” Id. at *15.

This is potent stuff: tying prosecutorial misconduct to constitutional violations garners a habeas win, here. In any trial, however, using this robust language from Sechrest to “constitutionalize” objections to prosecutorial misconduct will help earn a more-favorable standard of review on appeal.

For Further Reading: The Hon. H.P., a kind man, doesn’t name the prosecutor in this “flagrant” misconduct opinion. From a systemic perspective, however, this omission dilutes the deterrent impact of the case. For an interesting article on the conundrum (and some suggestions on remedies), see Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, article available here.

Image of Judge Berzon from Image of Judge W. Fletcher from

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


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Anonymous Anonymous said...

fyi - the prosecutor was Mills Lane, who is sometimes known for his side job as a boxing referee.

Friday, December 12, 2008 9:07:00 AM  

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