Wednesday, June 06, 2012

Xiong v. Felker, No. 09-16830 (6-5-12)(M. Smith with McKeown; dissent by Noonan).
"Hey, that guy talking in the hallway.  Isn't that the witness?  Didn't he just testify that he was really confused about a lot of things?  He seems pretty calm and collected now."  Several jurors made comments to that effect in deliberations concerning a murder charge.  The demeanor issue of extrinsic evidence  was found to  be harmless by the state courts, and the 9th, under AEDPA, found it to be not unreasonable.  The 9th also rejected arguments that the jurors should have been made to assent to contact and that defense counsel committed  IAC for a cross examination of a gang expert.  The former was not preserved, nor raised a constitutional issue of due process.  The latter was mischaracterized and was not IAC..  Noonan, dissenting, argues that the issue of extrinsic evidence considered by the jury was controlled by Supreme Court precedent and required reversa, even under AEDPA.  It could not be harmless.   Here, a key witness was the subject of discussion for what he did outside  the courtroom and off the witness stand.  The jurors saying that it didn't affect their deliberations, or that it was considered after the verdict, doesn't make it harmless.


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