Ninth Circuit News You Can Use

In the last few months the United States Court of Appeals in San Fransisco has issued several decisions that are particularly helpful to us down here in Arizona. Today I want to talk about two of my favorites, which provide us with some fresh ammo in jury trials. Both involve specific issues which come up over and over in our DUI, domestic violence, and other criminal jury trials down here.


First, In United States v. Brooks 771 F.3d 1161 (Nov. 23, 2014) a unanimous 9th Circuit panel held that the defendant’s 6th Amendment Confrontation rights were violated when one officer testified about what another officer said. At Brooks’s federal trial in Phoenix for drug trafficking, a United States Postal Inspector named Agster testified about what other governmental officals told him:

Prosecutor: Were you contacted by task force members …?

Agster: Yes.

Prosecutor: What information were you given at that time?

Agster: The information on this was they were following another subject who went to the Glendale Arrowhead Post office …

Prosecution: Did you contact the supervisor of that post office … How did you know that was the same parcel that had been mailed earlier that day?

Agster: The information that was provided to me over the phone. The tracking number as well as the mailing information …

United States v. Brooks 772 F.3d 1161, 1166 (9th Cir. Nov. 24, 2014)

The defense objected. Id. Yet, Judge Tielborg overruled both objections, admitting the statements and some photos. The Jury convicted then Brooks and thereafter Judge Tielborg sentenced Brooks to 9 years in Federal Prison (110 months). Id. at 1167.

But the Ninth Circuit reversed, specifically holding that admission of such statements violated the Confrontation Clause of the United States Constitution. Id. at 1168. Moreover, the panel emphasized that “out of court statements need not be repeated verbatim to trigger the protections of the Confrontation Clause.” Id. at 1167.  Rather, those that “if fairly read [] convey to the jury the substance of an out of court [] testimonial statement” trigger constitutional protections. Id. citing Ocampo v. Vail 629 F3d 1098, 1109-10 (9th Cir. 2011).

Additionally, the panel in Brooks  specifically rejected the government’s contention that such error was harmless, emphasizing that “the [government’s]burden to establish harmlessness (beyond a reasonable doubt) is heavier for constitutional errors …” Id. at 1171.


How might Brooks  be helpful to you in your trial? Well, unfortunately many times Prosecutors try to elicit (slip in) testimony, even in passing, about what another police officer conveyed to the one on the witness stand. It might be about what a back up officer learned from the stop officer about the driving, or what the first guy on scene related to the Detective. Many judges will let this in.

Brooks gives your attorney ammunition to make a proper objection and, at the least, preserve the issue for appeal, but better, to stop the practice cold.

Here’s a link to the case United States v. Brooks:


Second, in another notable case, Deck v. Jenkins (9th Cir. Sept 29, 2014), the 9th Circuit also held that a prosecutor’s misstatement of law in closing argument, although only a small part of the argument, required reversal, and vacation (not the kind where you go to Maui but the kind where you get to go back to a Judge’s courtroom for a new trial) of conviction.

In Deck, the prosecutor argued to a jury, erroneously, in a “lewd act” prosecution that under the law the state did not have to prove that the defendant intended to commit a lewd act on the day in question, if the defendant intended to commit the act on a later date.  The jurors nodded their heads and convicted.

But, in Deck, while the state appellate courts held that although such prosecutorial argument was indeed a misstatement of law, they declined to reverse, by finding that such misstatement was only a “small” part of the overall argument. However, the 9th Circuit, sitting in habeas jurisdiction, disagreed, and held that such misstatement of law denied the defendant a fair trial. Mr. Deck gets a vacation.


So how can Mr. Deck help you in your trial? Once again, and unfortunately, prosecutors occasionally in their competitive zeal distort the law during their closing arguments. And once again, this happens more often than you might imagine.  Defense attorneys, ever vigilant, are typically on guard for such arguments, and most object timely. But judges often overrule the objections, or sustain and tell the jury to “disregard.” But as they say, you can’t “unring a bell.”

Deck therefore gives the defense ammunition to argue now that once a prosecutor makes such a misstatement, even if it is only a small part of the argument, it triggers a mistrial.

Here’s a link to Deck:

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Michael Harwin

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