phillip spector reply brief supporting writ of habeas corpus filed by dennis riordan 11-9-2012

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DENNIS P. RIORDAN, Esq. (SBN 69320)

E-mail: [email protected]

DONALD M. HORGAN, Esq. (SBN 121547)

RIORDAN & HORGAN

523 Octavia Street

San Francisco, CA 94102

Telephone: (415) 431-3472

Fax: (415) 552-2703

CHARLES M. SEVILLA, Esq. (SBN 45930)

1010 Second Avenue, 1825

San Diego, CA 92101

Telephone: (619) 232-222

Counsel for Petitioner

PHILLIP SPECTOR

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

PHILLIP SPECTOR,

Petitioner,

v.

RALPH M. DIAZ, Warden,

Respondent.

Case No. CV 12-5288-SJO (PLA)

PETITIONER’S MEMORANDUM

OF POINTS AND AUTHORITIES

IN SUPPORT OF VERIFIED

TRAVERSE

Petitioner’s Memorandum of Points and

Authorities in Support of Verified Traverse

Case 2:12-cv-05288-SJO-PLA Document 16-1 Filed 11/09/12 of 37 Page ID #:269

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TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. THE ADMISSION OF THE TRIAL JUDGE’S STATEMENTS AND GESTURES VIOLATED CRAWFORD . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Fidler Statements Were Hearsay Evidence. . . . . . . . . . . . . . . . . . 4

1. The “Context” Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. The “Interrogatory” Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. The Court Reporter Analogy. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Judge’s Statements were Testimonial. . . . . . . . . . . . . . . . . . . . . . 8

1. The “Ultimate” or “Litigated” Contention . . . . . . . . . . . . . . . . 8

2. The Absence of an Oath. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL TRIBUNAL. . . . . . . . . . . . . . . . . . . . . . . . . 10

III. THE PHOTO DISPLAY CONCLUSIVELY PROVES THE CRAWFORD AND QUERCIA ERRORS AND ESTABLISHES THEIR PREJUDICIAL IMPACT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. PETITIONER’S CLAIM THAT THE PROSECUTION COMMITTED PREJUDICIAL MISCONDUCT BY ARGUING TO THE JURY THAT THE TRIAL JUDGE WAS A WITNESS AGAINST THE DEFENDANT WAS FULLY AND FAIRLYPRESENTED TO THE STATE COURTS.. . . . . . . . . . . . . . . . . . . . . . . . . 15

V. THE STATE APPELLATE COURT’S DECISION REQUIRES RELIEF UNDER SECTION 2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

VI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT BY ATTACKING THE INTEGRITY OF DEFENSE COUNSEL AND BY ARGUING THAT THEPETITIONER USED HIS WEALTH TO PURCHASE FALSETESTIMONY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The Statements of a Bought and Paid For Defense Could Only be Interpreted to Mean Defense Counsel Purchased False Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. The Statements Attacking Defense Counsel’s Integrity Were Part of the Theme of Urging Dishonesty to Discredit the Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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Table of Contents continued

C. The Prosecution Arguments Were Not Fair or Supported by the Record, And Denied Petitioner Due Process. . . . . . . . . . . . . . . . 28

D. There Was Actual Prejudice From the Due Process Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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TABLE OF AUTHORITIES

CASES

Bennett v. Mueller, 296 F.3d 752 (9th Cir. 2002) 13, 18

Bible v. Ryan, 571 F.3d 860 (9th Cir. 2009) 20

Brecht v. Abrahamson, 507 U.S. 619 (1993) 14, 15, 30

Bright v. Zabler, 43 Cal. App. 2d 706 (1941) 18

Brown v. Lynaugh, 843 F.2d 849 (5th Cir. 1988) 19

Chapman v. California, 386 U.S. 18 (1967) 14, 15, 16

Cone v. Bell, 556 U.S. 449 (2009) 19

Crawford v. Washington, 541 U.S. 36 (2004) passim

In re David H., 165 Cal. App. 4th 1626 (2008) 18

In re Murchison, 349 U.S. 133 (1955) 19

Darden v. Wainwright, 477 U.S. 168 (1986) 28, 29, 30

Davis v. Washington,547 U.S. 813 (2006) 9

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) 28

Ford v. Georgia, 498 U.S. 411 (1991) 13

Gray v. Mississippi, 481 U.S. 648 (1987) 14

Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770 (2011) 21, 23

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Table of Authorities continued

Hathorn v. Lovorn, 457 U.S. 255 (1982) 13

James v. Kentucky, 466 U.S. 341 (1984) 13

Melendez v. Pliler, 288 F.3d 1120 (9th Cir. 2002) 18

O’Neal v. McAninch, 513 U.S. 432 (1995) 30

Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011) 6

Panetti v. Quarterman, 551 U.S. 930 (2007) 20

Parker v. Matthews, 132 S.Ct. 2148 (2012) 28, 29

Patterson v. Gomez, 223 F.3d 959 (9th Cir. 2000) 20

People v. Bolton, 23 Cal.3d 208 (1979) 16, 19

People v. Mahoney, 201 Cal. 618 (1927) 16

People v. Sturm,37 Cal.4th 1218 (2006) 16

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) 19

Quercia v. United States, 289 U.S. 466 (1933) 10, 11

Reichardt v. Hoffman, 52 Cal. App. 4th 754 (1997) 18

Richmond Redevelopment Agency v. Western Title Guaranty Co., 48 Cal. App. 3d 343 (1975) 18

Runningeagle v. Ryan, 686 F.3d 758 (9th Cir. 2012) 13

Schiro v. Landrigan, 550 U.S. 465 (2007) 13

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Table of Authorities continued

Shepard v. United States, 290 U.S. 96 (1933) 5

Singh v. Prunty, 142 F.3d 1157 (9th Cir. 1998) 14

Spain v. Rushen, 883 F.3d 712 (9th Cir. 1989) 12

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) 6, 10, 13

Tumey v. Ohio, 273 U.S. 510 (1927) 14, 19

United States ex rel. Griffith v. Hulick, 587 F. Supp. 2d 899 (N.D. Ill. 2008) 24

United States v. Garza, 608 F.2d 659 (5th Cir. 1979) 30

United States v. Holmes, 620 F.3d 836 (8th Cir. 2010) 4

United States v. Kojoyan, 8 F.3d 1315 (9th Cir. 1993) 12

United States v. Maher, 454 F.3d 13 (1st Cir. 2006) 4, 7

United States v. Silva, 380 F.3d 1018 (7th Cir. 2004) 4

Wilson v. Czerniak,355 F.3d 1151 (9th Cir. 2004) 21

STATUTES

28 U.S.C. § 2254(d)(2) 13

Cal. Evid. Code 1200(a) 4

Fed. R. Evid. 801(a) 5

Fed. R. Evid. 801(c) 4

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INTRODUCTION

The state’s Answer to petitioner Spector’s habeas petition (hereafter

“Ans.”) concedes, as it must, what the trial record places beyond dispute. First,

Jamie Lintemoot’s testimony at petitioner’s retrial regarding where she saw blood

on Lana Clarkson’s hands was key to the state’s contention that Clarkson did not

shoot herself. Ans. at 7. Second, Lintemoot’s testimony at the retrial not only was

unsupported by her initial reports, it was itself conflicted and unclear. The

prosecution therefore introduced a videotape from a prior court hearing which

contained statements and gestures by both Lintemoot and Judge Fidler, who

presided at petitioner’s two trials. Ans. at 8-9. Third, when the defense objected to

the introduction of the judge’s statements and gestures as an evidentiary exhibit,

Judge Fidler justified its admission on the ground that his actions and comments

had probative value beyond those of Lintemoot alone because: “[S]he didn’t show

it where the jury can see the top...The only person who could see it is me, and I’m

describing what I’m watching.” Ans. at 18, citing 40 RT 4883.

The state likewise concedes that in closing argument, the prosecution urged

jurors to consider in their deliberations not only what Lintemoot said and did on

the tape, but what Judge Fidler “describe[d] by words and by his own

demonstration.” Ans. at 26, citing 47 RT at 9295 (emphasis added); see also id.,

at 27, citing 48 RT 9608-09 (“This is where the court saw her pointing.”)

Respondent also does not deny, nor could it, that the prosecution was permitted

over defense objection to display three still photos of Judge Fidler among those of

its other witnesses during its closing argument. Ans. at 12. Finally, the state

agrees that Fidler expressly denied the defense’s requested instruction that only

Lintemoot’s statements, not the judge’s own words and demonstration, could be

considered as evidence. Ans. at 11 n.3.

In the face of these facts, the state nonetheless defends the rulings of the

California Court of Appeal (hereafter “CCOA”) that (a) Judge Fidler’s taped


Authorities in Support of Verified Traverse 1


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statements and actions were not introduced nor used by the prosecution in

violation of petitioner’s right under the Sixth and Fourteenth Amendments to

confront the witnesses against him; and (b) the prosecution did not present Judge

Fidler to the jury as its witness in violation of petitioner’s federal due process

right to an impartial tribunal. But the state’s Answer serves to expose, and indeed

to amplify, the unreasonability of the CCOA decision.

The CCOA’s ipse dixit, parroted here by respondent, Ans. at 10-12, that the

Fidler portions of the tape were not “testimonial” hearsay, introduced for the truth

of what they asserted, is specious. Judge Fidler made his statements in the midst

of a criminal trial, and they were preserved on videotape for use in future court-

proceedings, plainly meeting the Supreme Court’s definition of “testimonial” as

“statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial.” Crawford v. Washington, 541 U.S. 36, 51-52 (2004). And the

prosecution’s closing argument plainly urged jurors to consider Fidler’s

statements and gestures to be proof of the assertions contained therein. The

CCOA opinion evaded that truth by simply ignoring those relevant passages of

the state’s closing argument. A state court decision that flatly refuses to consider

the facts underlying a constitutional claim cannot be said to have reasonably

decided it.

As to the violation of judicial neutrality, as respondent concedes, the

CCOA itself ruled that Judge Fidler’s statements and gestures were “admissible”

and “admitted’ against petitioner. Ans. at 8-9. Obviously, when statements and a

physical demonstration are admitted into evidence, they take on the character of

evidence, which is precisely why Judge Fidler refused to instruct the jury that his

videotaped statements were not evidence. The display of Judge Fidler’s photos

during closing conclusively establishes both that the prosecution presented Fidler

to the jury as a witness giving testimony against petitioner, and that the judge’s




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evidence had a substantial and injurious effect on the verdict.

Finally, as demonstrated below, the prejudicial impact of the deprivations

of the rights to confrontation and judicial partiality was compounded by the

prosecution’s egregious misconduct in closing argument.

I. THE ADMISSION OF THE TRIAL JUDGE’S STATEMENTS ANDGESTURES VIOLATED CRAWFORD

The state notes that the blood-spatter evidence was “an important piece of

physical evidence showing that Clarkson could not have shot herself.” Ans. at 7.

That evidence was indeed important—and highly suspect. The photographs of

Ms. Clarkson showed no blood on the backs of her hands. Criminalist Jamie

Lintemoot’s contemporaneous report made no mention of blood on the backs of

Ms. Clarkson’s hands. At the first trial, the state presented no evidence that Ms.

Clarkson had blood on the backs of her hands. And as a result, at the first trial,

the state’s expert Lynn Herold testified that she could not say with scientific

certainty whether Mr. Spector fired the fatal shot.

At the second trial, the state conveniently presented new evidence that there

was blood on the back of Ms. Clarkson’s hands. The evidence came from

testimony of Lintemoot, and her testimony caused Dr. Herold to change her

opinion. In order to bolster Lintemoot’s highly suspect and belated claims about

where she had seen blood, the state played the videotape of a 2007 hearing where

Judge Fidler stated and purported to demonstrate that Lintemoot had pointed to

the back of her hand in describing where she saw blood.

The trial judge thus became a critical witness at the second trial. Judge

Fidler’s statements were testimonial hearsay, and the defense had no opportunity

to cross-examine the judge. The admission of those statements therefore violated

the Sixth Amendment. In response, the state argues first that the statements were

not hearsay, and second, that the statements were not testimonial. Neither

argument has merit.




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A. The Fidler Statements Were Hearsay Evidence

1. The “Context” Claim

First, the state argues that Judge Fidler’s statements were not hearsay

because they were merely admitted for “context.” Ans. at 10-11. That argument

is nothing more than a transparent attempt to evade the confrontation right by re-

labeling. As other federal courts have held when addressing admissibility under a

“context” exception to Crawford: “The government's articulated justification . . .

is impossibly overbroad.” United States v. Maher, 454 F.3d 13, 22 (1st Cir.

2006). “What gives this situation added bite is that the ‘context’ rationale may be

used by the prosecution not just to get around hearsay law, but to circumvent

Crawford's constitutional rule.” Id; see also United States v. Holmes, 620 F.3d

836, 841 (8th Cir. 2010); United States v. Silva, 380 F.3d 1018, 1020 (7th Cir.

2004).

A return to first principles of hearsay law puts the lie to the government’s

argument. Hearsay is a statement, other than one made by a testifying witness,

admitted for the truth of the matter asserted. Cal. Evid. Code 1200(a); cf. Fed. R.

Evid. 801(c). A statement is hearsay “if the probative value of the out-of-court

statement depends on its being true.” Richard D. Friedman, The Elements of

Evidence 183 (2d ed. 1998). Put differently, if the truth of the matter asserted

forms one link in the chain of inferences that gives a piece of evidence its

probative value, then the evidence is hearsay. See 4 Mueller & Kirkpatrick,

Federal Evidence § 8.17 (3d ed. 2007) (“A statement is hearsay if it suggests an

immediate point that is offered as proof of some secondary point—if the

statement asserts some circumstantially relevant fact.”). Functionally, if the

probative value of the statement “depends on the credibility of the declarant

without the assurances of oath, presence, or cross-examination,” then the

statement is hearsay. McCormick on Evidence § 246 (6th ed. 2006).

On the videotape, Judge Fidler asserted that Lintemoot had pointed to the




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back or “exterior” of her hand and wrist area.1 The prosecutor in closing urged

jurors to rely on the judge’s “own demonstration,” 47 RT at 9295, to convict,

adding “[t]his is where the court saw her pointing,” 48RT 9608-09. The probative

value of those assertions depended on their truth. If the jury had assumed that

Judge Fidler’s statements were false, then those statements would have served no

purpose—they would not have provided “context;” they would not have

elucidated Lintemoot’s own testimony; they would not have had any probative

value at all. Functionally, moreover, the probative value of the statements

depended on the credibility of Judge Fidler. If the jury had assumed that Judge

Fidler were lying or otherwise unreliable, then his statements would not have

elucidated anything. And of course the prosecution’s use of the statements

depended on Judge Fidler’s credibility. Indeed, the presumption of his inherent

credibility as a judge is precisely what gave the videotape such power at trial.

The probative value of the videotape rested on the truth of Judge Fidler’s

assertions. The videotape was therefore hearsay.

The videotape “was neither offered nor received for the strained and narrow

purpose now suggested as legitimate.” Shepard v. United States, 290 U.S. 96,

102 (1933) (Cardozo, J.). At trial, the prosecution did not argue that the judge’s

statements merely “gave context” or “clarified” what Lintemoot had already said.

Rather, the prosecution argued that the judge “indicated” and “described” and

“demonstrated” that Lintemoot had seen blood on the back of Ms. Clarkson’s

wrists. See, e.g., 47 RT 9274, 9295.

Determined to evade application of Crawford, the CCOA in denying the

confrontation clause claim simply refused to address these critical passages of the

prosecution’s closing argument, which had been tellingly quoted in petitioner’s

1 Nonverbal conduct is assertive, and thus hearsay, when it intends to communicate

facts. See Fed. R. Evid. 801(a).




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briefing. Appellant’s Opening Brief at 54. Under 28 U.S.C. section 2254(d)(2),

constitutional claims cannot be disposed of so unreasonably. Ocampo v. Vail, 649

F.3d 1098, 1106 (9th Cir. 2011) (The “unreasonable determination of the facts”

standard may be met where “the state court has before it, yet apparently ignores,

evidence that supports petitioner’s claim.”); Taylor v. Maddox, 366 F.3d 992,

1008 (9th Cir. 2004) (state court’s “failure to take into account and reconcile key

parts of the record casts doubt on the process by which the finding was reached,

and hence on the correctness of the finding”).

2. The “Interrogatory” Claim

The state next contends that the trial judge did not really make an

affirmative statement on the videotape but was only in an “interrogatory” mode.

Ans. at 11. It is true that when questions are put to a witness by counsel, only the

answers, not the questions, have evidentiary value, and the jurors must therefore

be instructed on that critical principle. See CALCRIM 222 (Attorneys’ questions

are not evidence; “[o]nly the witnesses’ answers are evidence.”) But in this case,

as the CCOA conceded, Fidler’s statements and gestures on the tape were

themselves “admitted”—that is, placed in evidence—before the jury. In closing

argument, the prosecution did not treat Judge Fidler’s role on the tape as that of a

mere interrogator; rather it urged the jurors to consider Judge Fidler’s

“statements” and “his own demonstration” as evidence independent of the

testimony of Lintemoot. Of dispositive importance, Judge Fidler recognized that

the prosecution in closing had presented his statements and gestures on the tape as

evidence, and he approved its doing so by expressly refusing to instruct the jury

not to consider his conduct on the tape to be evidence.2

2 Respondent attempts to mitigate this refusal by citing a concluding instruction

given with all the other instructions: “Do not take anything I said or did during the

trial as an indication of what I think about the facts, the witnesses or what your

verdict should be.” CALCRIM 3550 (quoted in the Ans. at 17). This instruction




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3. The Court Reporter Analogy

The state further asserts that Judge Fidler was simply “recording” what

happened during Lintemoot’s testimony at the 2007 hearing. “[M]uch like a court

reporter does, the judge at the videotaped hearing was simply recording where the

witness Lintemoot was testifying that she saw the spatter.” Ans. at 15. The claim

that Judge Fidler was merely “recording” what Lintemoot had already stated and

demonstrated is belied by the simple fact that Lintemoot’s testimony was already

recorded—by the videotape itself. Given the videotape, there was no need for any

additional “recording;” Lintemoot’s oral testimony and her hand gestures should

have spoken for themselves. If, on the videotape, Lintemoot had clearly stated

and demonstrated that she saw blood on the back of Ms. Clarkson’s hands, then of

course there would have been no need for the prosecution to rely on Judge

Fidler’s statements. All of it would have been plainly visible from Lintemoot’s

testimony itself, and the prosecution could have simply referred the jury to

Lintemoot’s own words and gestures.

But in reality, Lintemoot’s 2007 testimony was not clear. Lintemoot did

not clearly state or demonstrate that she had seen blood on the back of Ms.

Clarkson’s hands. Her own words and gestures did not clarify anything, and thus

a videotape consisting solely of her words and gestures would have done little or

nothing to rehabilitate her trial testimony. It was precisely for that reason that

Judge Fidler’s statements were so important: He asserted, much more clearly than

Lintemoot, that she witnessed blood on the back of the hands. And it was

precisely for that reason that in closing argument the prosecution relied so heavily

on Judge Fidler’s statements and gestures rather than on Lintemoot’s own

in no way addressed the issue of the court’s statements on the video which were

admitted as evidence as part of the videotape exhibit as opposed to the court’s

non-evidentiary comments during the trial.




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statements and gestures.

B. The Judge’s Statements were Testimonial

1. The “Ultimate” or “Litigated” Contention

Next, respondent argues that Judge Fidler’s statements and gestures on the

tape were not “testimonial’ evidence subject to the Crawford rule because

[w]hile at the videotaped hearing, the trial court was describing what

was actually happening, not past events. Critically, the trial court was

not clarifying where Lintemoot really saw the blood spatter on

Clarkson––the ultimate fact sought to be proved at the videotaped

hearing––it was seeking to pinpoint where Lintemoot testified she

saw it.

Ans. at 11; see also Ans. at 12 (“[A]gain, the admission of the court’s clarifying

gestures and statements on the videotape did not speak to where Lintemoot saw

the blood on Clarkson’s wrists¯the litigated issue¯but to where Lintemoot was

testifying that she saw the blood on Clarkson’s wrists.”)

The “ultimate” or “litigated” fact distinction the state seeks to draw rests on

the assumption that one person’s description of the circumstances and content of a

statement given by another person about an important or “ultimate” fact in a

prosecution cannot qualify for the application of Crawford. This is nonsense.

When a police officer attends a line-up in which a victim identifies a suspect or

takes a purported confession from an accused, it is the victim’s statement or the

defendant’s admission that concerns the “ultimate fact,” but the line-up

identification or the confession would be inadmissible unless the officer-witness

took the stand to be cross-examined on what he or she saw or heard. Here, by

analogy, Judge Fidler stood in the shoes of the police officer: he was describing

the content and circumstances surrounding a statement by witness Lintemoot

concerning an “ultimate’ or litigated” fact at trial—the location of blood spatter.

In so doing, Fidler provided what the prosecution deemed to be critical evidence




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against the accused, and thus had to be subjected to confrontation under

Crawford.

The state attempts to liken this case to Davis v. Washington, 547 U.S. 813,

828 (2006). Ans. at 10 (quoting language in Davis that in giving statement to 911

operator, declarant “simply was not acting as a witness; she was not testifying.”)

The state entirely ignores the formality of the setting of the declarant’s statement,

which is a critical factor in the Crawford inquiry.

In the consolidated cases of Davis and Hammon, the Supreme Court

distinguished the two situations largely on the basis of formality. In Davis,

statements to a 911 operator were ruled informal, and therefore nontestimonial.

Perhaps the single most important factor determining the applicability of the

Crawford rule was that the declarant “was facing an ongoing emergency.” 547

U.S. at 827. By contrast, the statements to police in Hammon were more formal,

and therefore testimonial. 547 U.S. at 827 (“[T]he difference in the level of

formality between the two interviews is striking.”). That was true even though

the Hammon statements were less formal than those in Crawford itself. Id. at 830

(“It is true that the Crawford interrogation was more formal. . . . [The statements

here were] “formal enough.”).

The facts here bears no resemblance to Davis. At Mr. Spector’s 2007

pretrial hearing, Judge Fidler was not describing or attempting to resolve any

ongoing emergency. The statements in this case were made in a courtroom as part

of a formal adversarial setting. The setting was far more formal than that in either

Crawford or Hammon. Fidler’s statements and gestures were thus testimonial,

requiring cross-examination.

2. The Absence of an Oath

The state argues that even if the videotape contained hearsay, it was not

testimonial hearsay because the “trial court was not a witness under oath.” Ans.

at 11. That is simply not the standard. Sylvia Crawford herself was “not a witness




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under oath,” and yet her statements to police were nonetheless testimonial

because they had sufficient indicia of formality and they were intended for use in

an official governmental proceeding. See Crawford, 541 U.S. at 52 (“The

statements are not sworn testimony, but the absence of oath was not

dispositive.”).

II. PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONALRIGHT TO AN IMPARTIAL TRIBUNAL

The United States Supreme Court has held for nearly a century that a trial

judge “may not assume the role of a witness.” Quercia v. United States, 289 U.S.

466, 470 (1933). A trial judge has some power to comment on evidence, but

when he “distort[s] it” or “add[s] to it,” he violates the United States Constitution.

Id. The state cannot deny the plain legal meaning of the Quercia rule, so instead

it distorts the facts of this case.

The state argues that Mr. Spector’s right to an impartial judge was not

violated because Judge Fidler’s statements were not in any way used as evidence.

But, as noted above, respondent has conceded the obvious fact that the statements

were admitted into evidence. The state’s claim that Fidler’s statements and

gestures were not presented to the jury as evidence is rendered patently false by

the prosecution’s use of the judge’s statements at trial, particularly in closing

argument, where the jury was expressly urged to rely on the judge’s “words” and

“his own demonstration.” The CCOA could justify its conclusion that the

prosecution did not present Fidler’s statements as evidence only by consciously

avoiding all mention of these key passages of the prosecution’s closing, thereby

rendering its factfinding process defective and thus unreasonable under section

2254(d)(2). Taylor v. Maddox, 366 F.3d at 1000-01.

Under Quercia, a trial judge may not make statements that “add to” the

prosecution’s case. 289 U.S. at 470. That is precisely what Judge Fidler did here.

Judge Fidler’s statements did not simply relay and record Lintemoot’s testimony.




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The judge’s statements on tape were critical for the prosecution because he said

and indicated what Lintemoot herself had not. His statements added

something—which is precisely why the prosecution relied on his statements so

heavily. Indeed, the state concedes in its Answer that the prosecution “argu[ed]

that the trial judge’s indication on the videotape of the first trial about where

Lintemoot was pointing supported her testimony in the second trial.” Ans. at 28

(emphasis added.) Lending “support” to a prosecution witness necessarily aids

and adds to the prosecution case. If Judge Fidler’s statements had not added to

Lintemoot’s testimony, there would have been no need for the prosecution to rely

on his statements at trial. The judge took a side, which is precisely why his

statements were such powerful evidence for the prosecution. But that sort of

reliance on judge-provided evidence is precisely what Quercia forbids.

III. THE PHOTO DISPLAY CONCLUSIVELY PROVES THECRAWFORD AND QUERCIA ERRORS AND ESTABLISHES THEIRPREJUDICIAL IMPACT

The display of Judge Fidler’s photos proves beyond peradventure that he

served as a prosecution witness, especially given that, in response to the defense

objection to the display, the judge approved its use and refused to instruct that his

statements and gestures were not evidence against the defendant. But the CCOA

refused to address the display’s significance, ostensibly on the grounds that the

display was not raised as an independent constitutional claim in petitioner’s

opening brief and that the photos themselves were not made part of the state

appellate record. Respondent urges this Court to accept that reasoning. Ans. at 12-

13.

But petitioner has never contended that the display of a trial judge’s photo

during closing argument is, in itself, necessarily an independent constitutional




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violation.3 Nor has petitioner ever advanced a claim that would require a

reviewing court to view the photos themselves—e.g., that Judge Fidler’s

particular facial expression on the photos was prejudicial. Rather, Spector asserts

here, just as he vigorously argued in his opening brief on appeal, that the display

of the Fidler photos while prosecutors urged jurors to rely on the judge’s

statements and gestures to convict Spector is a fact that proves petitioner’s trial

judge served as an unexamined and highly prejudicial prosecution witness against

petitioner. And it is a fact that is fully established by the record that was before

the CCOA and is now before this tribunal.4

The CCOA could not and did not deny that during its closing argument the

prosecution displayed photos of Judge Fidler among those of its witnesses. Nor

can respondent take that position here, because to do so would require making a

false statement to a federal judge. United States v. Kojoyan, 8 F.3d 1315, 1319-

1321 (9th Cir. 1993) (It is never fair advocacy to make a false statement, i.e., one

contrary to fact, to a federal court.) In its opinion, the CCOA conceded that

petitioner’s opening brief on appeal (a) had described the photo display; and (b)

had argued that the display proved that Fidler’s serving as a prosecution witness

against him was prejudicial error. See Exh. B to petition, order denying rehearing,

3 For example, a prosecutor could display a judicial photo during closing

argument for no purpose other than to correctly point out that the judge would

soon be instructing jurors on the law. In that situation, a defendant would have no

constitutional complaint.

4 In Spain v. Rushen, 883 F.3d 712, 728 (9th Cir. 1989), the Ninth Circuit granted

habeas relief to a prisoner who had been chained to his chair during his state court

trial on the facts and descriptions contained in the trial transcripts; the shackles

themselves were not made part of the state or federal records.




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at pp. 1-2, footnote 12.5

To quote respondent, because “petitioner’s claims are resolvable by

reference to the state-court record, a federal habeas court may adjudicate the

claims on the basis of that record.” Ans. at 6 (citing Schiro v. Landrigan, 550

U.S. 465, 474-75 (2007)). As the state must admit, every fact concerning the

photos upon which petitioner’s habeas claims rest was indisputably part of “the

record that was before the state court that adjudicated the claim on the merits.”

Ans. at 12 (citing Runningeagle v. Ryan, 686 F.3d 758, 773 (9th Cir. 2012)). The

CCOA’s evasion of those facts adds to its unreasonable factual determination of

the bias and Crawford issues in the appeal. 28 U.S.C. § 2254(d)(2); Taylor v.

Maddox, 366 F.3d at 1000-01.

“State courts may not avoid deciding federal issues by invoking procedural

rules that they do not apply evenhandedly to all similar claims.” Hathorn v.

Lovorn, 457 U.S. 255, 263 (1982); accord Ford v. Georgia, 498 U.S. 411, 423-

424 (1991); James v. Kentucky, 466 U.S. 341, 348-349 (1984). In Bennett v.

Mueller, 296 F.3d 752, 763 (9th Cir. 2002), the Ninth Circuit held it is the State’s

burden to show even application of the state’s procedure default rule (there, the

contemporaneous objection requirement). The CCOA cited no case, nor has

respondent, in which a California appellate court refused to consider a fact that

was clearly established by the record and relied upon by an appellant in his

5 See AOB at 63: “Most remarkably, as with witnesses such as Lintemoot, during

the state’s closing arguments prosecutors displayed three still pictures of Judge

Fidler as a party who had provided evidence of guilt. Plainly, the prosecution

perceived it needed to rely on Judge Fidler’s unsworn statements and

demonstration to win a conviction on the murder charge.” See also Appellant’s

Reply Brief at 1: “No California court (or, apparently, any court in this nation) has

ever approved admitting the out-of-court statements of the very judge presiding

over a defendant’s trial as evidence of that defendant’s guilt, much less the posting

during closing arguments of a photo of the trial judge as one of the prosecution’s

principal witnesses.”




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opening brief. Respondent cannot prevent this Court from considering the photo

display simply because the CCOA refused to confront facts that were staring it in

its proverbial face.

The reason why both the CCOA and respondent chose to evade rather than

confront the fact of the display of the Fidler photos is obvious: the display is

outcome-determinative of this Court’s prejudice inquiry under Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). Even had the Crawford error bearing on

the blood spatter issue involved an ordinary witness, it would necessarily have

been prejudicial in this case in which (a) the jury at petitioner’s first trial hung

because, in the words of Judge Fidler himself: “We don’t know how the gun got

in her mouth” (FT 11878); (b) the difference between the prosecution’s case at

the first and second trial was the changed blood spatter testimony of Lintemoot

and Herold; (c) the prosecution characterized the blood spatter testimony as “the

single piece of evidence [the defense] cannot explain away” (47 RT 9297); and

(d) the jury struggled to reach a verdict in the second trial, deliberating for nine

days. As petitioner argued in his state appeal, the clearest proof of the prejudicial

impact of the Crawford error is the fact that the prosecution felt it necessary to

resort to the impermissible tactic at petitioner’s retrial. Singh v. Prunty, 142 F.3d

1157 (9th Cir. 1998) (“In the adversarial process, the prosecutor, more than

neutral jurists, can better perceive the weakness of the state’s case.”).

But the Crawford error here did not involve an ordinary witness. The

closeness of the case aside, a violation of the constitutional right to an impartial

judge can never be harmless. See Chapman v. California, 386 U.S. 18, 23 (1967)

(recognizing the right to an impartial judge as among those “constitutional rights

so basic to a fair trial that their infraction can never be treated as harmless error”);

Tumey v. Ohio, 273 U.S. 510, 535 (1927) (“No matter what the evidence was

against him, he had the right to have an impartial judge.”) See also Gray v.

Mississippi, 481 U.S. 648, 668 (1987) (stating that right to impartial jury is not




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merely a personal right possessed by the individual defendant but rather

implicates the integrity of the entire judicial system).

The CCOA could not have affirmed petitioner’s conviction if it had taken

the deeply disturbing photo display into account, as petitioner urged it to do. The

Brecht standard clearly has been met.

IV. PETITIONER’S CLAIM THAT THE PROSECUTIONCOMMITTED PREJUDICIAL MISCONDUCT BY ARGUING TOTHE JURY THAT THE TRIAL JUDGE WAS A WITNESSAGAINST THE DEFENDANT WAS FULLY AND FAIRLYPRESENTED TO THE STATE COURTS

Petitioner’s third claim for relief exposes the profound irrationality of the

state’s position. On the one hand, respondent has recognized that a judge may not

serve as a prosecution witness, and therefore vigorously argued in the state

appellate court, as it does here, that Judge Fidler’s statements were not presented

to the jury as evidence nor was he “convert[ed] into a witness for the

prosecution.” Ans. at 14. The state appellate court accepted respondent’s

contention that Fidler’s statements and actions were not “evidence,” Ans. at 10,

and that “the trial court never became a witness against Spector,” Ans. at 13.

But if that were the case, then the prosecution committed grave misconduct

in its closing argument by urging the jury to consider Fidler’s “words” and “his

own demonstration” as evidence of guilt and by displaying the judge’s photos

along with those of its other witnesses. Spector raised this federal constitutional

claim concerning the prosecutorial on unsworn assertions of fact in his opening

brief on appeal, arguing that:

As a matter of federal constitutional law, in order to avoid reversal,

the state would have to prove beyond a reasonable doubt that the

erroneous admission of the Fidler material did not influence the

verdict. (Chapman v. California, 386 U.S. 18, 24 (1967); Bolton, 23

Cal.3d at 214, n. 4 [Prosecutor’s misconduct in placing unsworn

assertions of fact before jury in closing argument subject to




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Chapman standard of review].) That is an impossible task.

AOB at 62 (citing People v. Bolton, 23 Cal.3d 208 (1979).

Petitioner also cited footnote 4 of Bolton in his opening brief, which states:

“Chapman itself recognized that a prosecutor's closing argument could be so

improper as to create federal constitutional error. (Chapman v. California, supra,

386 U.S. 18, 25-26 [17 L.Ed.2d 705, 711].)” Id. Again, emphasizing the role of

the prosecutor’s argument, petitioner contended:

Most remarkably, as with witnesses such as Lintemoot, during the

state’s closing arguments prosecutors displayed three still pictures of

Judge Fidler as a party who had provided evidence of guilt. Plainly,

the prosecution perceived it needed to rely on Judge Fidler’s

unsworn statements and demonstration to win a conviction on the

murder charge.

AOB at 63.

Our Supreme Court has strongly condemned unsworn assertions of

fact by prosecutors because such testimony, “although worthless as a

matter of law, can be ‘dynamite’ to the jury because of the special

regard the jury has for the prosecutor, thereby effectively

circumventing the rules of evidence.” (Bolton, supra, 23 Cal.3d at

213.) “Statements of supposed facts not in evidence ... are a highly

prejudicial form of misconduct, and a frequent basis for reversal.” (5

Witkin & Epstein, supra, Trial, § 2901, p. 3550.) Needless to say,

given the even greater respect judges are afforded by jurors, their

unsworn statements of fact are all the more prejudicial. (People v.

Sturm (2006) 37 Cal.4th 1218, 1233 [Jurors “rely with great

confidence on the fairness of judges, and upon the correctness of

their views expressed during trials”]); People v. Mahoney (1927) 201

Cal. 618, 626 [“Jurors rely with great confidence on the fairness of




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judges, and upon the correctness of their views expressed during

trials.”]

AOB at 63.

Thus, the claim that the prosecution violated petitioner’s federal

constitutional right to a fair trial by committing prejudicial misconduct in closing

argument—by presenting Judge Fidler as its witness and his statements and

demonstration as evidence—was fully and fairly before the CCOA in petitioner’s

opening brief. As respondent concedes, Ans. at 24,6 the misconduct claim was

fully reiterated in both Spector’s petitions for rehearing in the Court of Appeal

and for Review in the California Supreme Court. It is thus exhausted for purposes

of federal review.

Yet in this Court, respondent asserts that this misconduct claim has been

defaulted on state procedural grounds because petitioner “did not raise any

prosecutorial misconduct based upon the prosecution’s closing argument about

the trial judge, or photographic display of the trial judge, until his petition for

rehearing of the court of appeal‘s decision.” Ans. at 23. In arguing procedural

default, respondent relies almost entirely on the fact that the CCOA asserted a

waiver bar as to any reliance by petitioner on the photo display. That assertion of

waiver concerning the photo display is meritless, however, as Spector has

demonstrated above in Argument III and in this argument.

The photo display aside, respondent’s more general contention that

petitioner “did not raise any prosecutorial misconduct based upon the

6 See Answer at 24: “[P]etitioner presented this claim in his petition for rehearing

to the California Court of Appeal, and his petition for review to the California

Supreme Court....” Both petitions presented the argument under the heading: “If

Judge Fidler Was Not A Witness Against Mr. Spector, Then Appellant’s

Conviction Must Be Reversed Due To Prosecutorial Misconduct and Instructional

Error.”




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prosecution’s closing argument about the trial judge” until rehearing is simply

untrue, as the foregoing citations to Spector’s opening brief on appeal

demonstrate. Unlike its treatment of the fact of the photo display, the CCOA

could not and did not enter any such finding of waiver as to the broader claim that

the prosecution engaged in misconduct in closing argument by presenting Fidler’s

statements and demonstration as evidence. Rather, as respondent agrees, the

CCOA simply “did not address the merits of Petitioner’s prosecutorial

misconduct claim.” Ans. at 23. As respondent’s own Answer recognizes, the

state may not raise a claim of procedural default where the state courts have not

“clearly and expressly invok[ed] the default by providing a ‘plain statement’ of

default.” Ans. at 22 (quoting Harris v. Reed, 489 U.S 255, 265-66 (1989)).

Nor would a finding of default have been valid even had the CCOA made

one, which it did not. If there had been a deficiency in raising the issue in the

opening brief, the error is not regularly enforced by the California courts to forfeit

the issue. As noted above, the State has the burden to show even application of

whatever state procedure default rule it seeks to invoke. Bennett v. Mueller, 296

F.3d at 763. The California courts, however, are “undoubtedly at liberty to decide

a case upon any points that its proper disposition may seem to require, whether

taken by counsel or not.” Reichardt v. Hoffman, 52 Cal. App. 4th 754, 764

(1997). More specifically, California courts commonly rule on the merits of the

claims asserted despite procedural deficiencies in briefing (e.g., not having the

issue clearly raised in a subheading). See Richmond Redevelopment Agency v.

Western Title Guaranty Co., 48 Cal. App. 3d 343, 347 (1975); In re David H.,

165 Cal. App. 4th 1626, 1644 (2008); Bright v. Zabler, 43 Cal. App. 2d 706,

708-09 (1941). Thus, the “opinion in this case does not support the conclusion

that California law applicable to the [forfeiture] circumstances presented here is

so ‘clear, consistently applied, and well-established’ as to erect a procedural bar

to consideration of a federal constitutional claim.” Melendez v. Pliler, 288 F.3d




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1120, 1124 (9th Cir. 2002).

On one point the parties are in agreement: “When a state court ‘did not

reach the merits’ of a federal claim, ‘federal habeas review is...de novo.’” Ans. at

6 (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)). Thus, this Court addresses

the misconduct issue without needing to pay AEDPA deference to any state court

resolution of the question. Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002). As

demonstrated above, the prosecution’s closing presented Judge Fidler as a state

witness and his statements and demonstration as evidence of Spector’s guilt. The

California Supreme Court’s Bolton opinion well summarizes why the misconduct

had a substantial and injurious effect on the jury: unsworn assertions of fact by

prosecutors, “although worthless as a matter of law, can be ‘dynamite’ to the jury

because of the special regard the jury has for the prosecutor, thereby effectively

circumventing the rules of evidence.” 23 Cal.3d at 213.

V. THE STATE APPELLATE COURT’S DECISION REQUIRESRELIEF UNDER SECTION 2254(d)

The state also avers that habeas relief must be denied because this precise

situation has never arisen before. “Petitioner’s claim must fail because there is no

clearly established Supreme Court constitutional law prohibiting as judicial bias

the admission of a videotape of a prior hearing at which the trial judge described

for the record the witness’s physical gestures.” Ans. at 15.

Our Supreme Court long ago clearly established that a trial judge must be

impartial and may not take the side of the prosecutor and act as part of the

accusatory process. Tumey v. Ohio, 273 U.S. 510, 535 (1927) (“No matter what

the evidence was against him, he had the right to have an impartial judge.”); In re

Murchison, 349 U.S. 133, 137 (1955). The lessons of these cases are a

constitutional commonplace. See, e.g., Brown v. Lynaugh, 843 F.2d 849, 851 (5th

Cir. 1988) (“It is difficult to see how the neutral role of the court could be more

compromised, or more blurred with the prosecutor’s role, than when the judge




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serves as a witness for the state.”). Likewise, Crawford predated petitioner’s trial

by five years, and has been followed in countless federal and state decisions

since.

It is admittedly true that the manner in which those precedents were

violated in this case is unusual. Indeed, and thankfully, prosecutors are not

ordinarily allowed to rely on trial judges as witnesses or play videotapes

including declarative statements from the trial judge regarding critical pieces of

evidence. Such tactics are not just rare, but probably unheard of for the precise

reason that they are so obviously illegal under the Constitution. But the state

cannot pretend the unique—and uniquely bad—facts of this case preclude habeas

review. As the Ninth Circuit has repeatedly stated, “The Supreme Court need not

apply a specific legal rule to an identical fact pattern as in the instant case for that

rule to qualify as clearly established law.” Bible v. Ryan, 571 F.3d 860, 869 (9th

Cir. 2009) (citing Panetti v. Quarterman, 551 U.S. 930 (2007)).

Put simply, unusual and unique cases can still merit habeas relief. As the

Ninth Circuit stated,

Nor does the fact that the Supreme Court has not ruled on the exact

fact pattern of this case prevent us from granting relief. For us to

overturn a state court decision on habeas review, the Supreme Court

need not have addressed a factually identical case so long as it has

clearly determined the applicable law. Patterson v. Gomez, 223 F.3d

959, 962 (9th Cir. 2000). It is not surprising that the Supreme Court

has not addressed a factually similar case, especially because juries

do not often acquit on one count and then hang on greater inclusive

offenses in the same trial. The unusual circumstances of this case,

however, do not discharge a state court from its obligation to

reasonably apply existing Supreme Court precedent, nor do they

paralyze our ability to overturn a state court's unreasonable




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application of that law.

Wilson v. Czerniak, 355 F.3d 1151, 1156 (9th Cir. 2004) (emphasis added).

The facts of this case are unique only because other prosecutors have not

been so frustrated by their inability to gain a conviction in an initial, highly

publicized trial that they resorted at retrial to using the presiding judge as a state’s

witness. Likewise, apparently no judge previously has been so insensitive to the

demands of judicial neutrality as to permit his photos to be displayed among those

of the state’s witnesses during the prosecution’s closing argument. But grave

errors are not immunized from federal habeas corpus review simply because they

are so constitutionally offensive as to be rare. As respondent agrees, “[s]ection

2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems....” Ans. at 6 (quoting

Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770, 786 (2011)). This case

involves just such an extreme malfunction. A new trial is in order.

VI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCTBY ATTACKING THE INTEGRITY OF DEFENSE COUNSEL ANDBY ARGUING THAT THE PETITIONER USED HIS WEALTH TOPURCHASE FALSE TESTIMONY

Respondent does not quibble with petitioner’s quotations of what was said

or argue any procedural bar to merits review. Rather, respondent posits either

that the prosecution’s final arguments: (1) were fair responses to defense

counsel’s own arguments; (2) do not amount to a due process issue recognized by

the U.S. Supreme Court under AEDPA; or (3) were not prejudicial because of

purported “overwhelming” evidence of guilt. Petitioner addresses these

contentions in turn.

A. The Statements of a Bought and Paid For DefenseCould Only be Interpreted to Mean Defense CounselPurchased False Testimony

Petitioner has never argued that the problems with the prosecutors’

arguments had to do with their stating that the defense experts were well-paid and




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that this fact could impact the jury assessment of their credibility. That is

permissible argument. Respondent states that is all the record reflects. Ans. at

34.

The prosecutors went far beyond that. They tied petitioner and his counsel

to “hir[ing] paid-to-say witnesses to get [petitioner] out of what [he had] done.”

47 RT 9233-34. The prosecutors argued the defense couldn’t change the facts, or

the evidence, or the science, so it just went out and bought experts to “hide the

truth” from the jury.7 The prosecutors told jurors that their (the prosecutors’) job,

in contrast to the defense function of hiding the truth, was “to give you the truth.”

48 RT 9549.

There is no “context” to change the clear meaning of the words spoken, as

respondent argues. Ans. at 35. In this regard, respondent argues that the

prosecutors’ comments were in response to the defense themes in the case. Ans.

at 35-36 (citing defense argument). Not so. The prosecution campaign of

defense denigration began in its initial argument before counsel gave his

argument. See 47 RT 9245 (“Their [defense] version of the truth shifts with

whatever direction the wind blows”); 47 RT 9272-73 (“The truth shifts whichever

direction the wind blows”); 47 RT 9276 (“I expect [defense counsel Mr.

Weinberg in discussing Jamie Lintemoot] to do with this evidence what he's done

with it all through the trial. Go through the machinations of the truth to avoid it,

7 “If you can't change the evidence, change the science, and if you can't change

the science, folks, just go out and buy yourself a scientist. That may work. There

may be some way to convince a jury . . . of that. Don’t let that happen. See this

for what it was. This was a ‘pay to say’ defense. You pay it; I’ll say it, no matter

how ridiculous it is. I’ll even say blood flies around corners. The total cost to the

defense to hide the truth from you folks.” (48 RT 9605-06; italics added.) See also

the additional prosecution comments of a similar theme in petitioner’s

memorandum of points and authorities at pp. 57-58.




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to change it, to move it from here to here. I mean, this is almost like an inside

joke with us because we’ve seen this moved to here”); 47 RT 9296 (“[B]ut the

moment the evidence no longer suits their purpose, the truth, their version of the

truth begins to shift”); 47 RT 9297 (“Why is it that the defense needs to go

through this long process of machinations of truth on this?”).

The defense understood the personal attack conveyed in the prosecution’s

initial argument. He responded to the jury, “The prosecution, apparently, thinks

that you find me untrustworthy. Apparently, that was the meaning of Ms. Do’s

argument yesterday.” 47 RT 9344. This sustained campaign was not responsive to

something petitioner’s counsel said.

Respondent next argues that a statement by the prosecutor cured any error.

Ans. at 36. The defense objected that the prosecution had accused him of having

“paid for false testimony, that the defense paid people to lie. He is accusing me ...

of buying testimony. That is misconduct.” 48 RT 9606. The court disagreed but

told the prosecutor to “clear that up.” Id. This led to a statement on the next page

where the prosecutor stated that defense experts Dr. Vincent Di Maio and Dr.

Werner Spitz testified to things that “do not in any way, shape, or form or fashion

fit into the science in this case. You have to ask yourself why....¶ Nobody cares

what they are paid.... What we are after is the truth. And you can use the amount

of money that they were paid or that they were paid at all to determine how much

credibility you are going to given them. That’s what that figure means. How

much credibility are you going to give the science experts when they have been

paid this kind of money?” 48 RT 9607.

In no way did the prosecutor retract (because he was not so ordered to do

so) the statements that the defense bought false testimony. The prosecutor told

the jury to consider that the money paid could determine credibility. This did not

remove the accusations repeatedly set forth in the prosecution’s two arguments

that defense counsel hired and paid his experts to testify in order to hide the truth




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from the jury to get petitioner off.

Respondent further asserts that the prosecutors did not argue matter

unsupported by the record. Ans. at 36. Not so. There was no support in the record

for the arguments that defense counsel was uninterested in the truth, or tried to

avoid the truth such that he hired experts to testify in order to “hide the truth”

from the jury. These arguments unfairly denigrated defense counsel, undermined

the defense case, and lightened the prosecution’s burden to prove its case. See

United States ex rel. Griffith v. Hulick, 587 F. Supp. 2d 899, 906 (N.D. Ill. 2008)

(Under AEDPA and Darden, prosecution misconduct denied due process based in

part on her denigrating defense counsel and improperly attacking defense expert

witnesses.)

B. The Statements Attacking Defense Counsel’s IntegrityWere Part of the Theme of Urging Dishonesty to Discreditthe Defense

Respondent claims the prosecution was entitled “to ask the jury to find that

its theory of the case was the truth and the defense theory was not.” Ans. at 37.

If that were all that was involved, there would be no issue. But the statements

cannot be so characterized. The prosecution portrayed defense counsel as

someone uninterested in the truth (unlike the prosecutors) who used

“machinations of the truth” to “avoid it, to change it, to move if from here to

here.” 47 RT 9276. The term “machination” is defined as “a scheming or crafty

action or artful design intended to accomplish some usually evil end.”8 In this

context, the word conveyed that petitioner’s counsel was a schemer seeking to

achieve an evil end—suppression of the truth.

Respondent argues that petitioner’s change of positions about evidence

justified the prosecution’s arguments. But the defense arguments were justified

8 See Webster’s on line dictionary: http://www.merriam-webster.com/dictionary/

machination?show=0&t=1288998846.




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by and grounded in the evidence. For example, defense counsel argued that prior

to trial, Mr. De Souza expressed uncertainty concerning the alleged confession.

See 47 RT 9490-9512. There was no changing to fit the season in this record-

based argument. Nothing supported accusations that defense counsel was “hiding

the truth” through “machinations.”

As justification for the prosecution’s conduct, respondent throws in one

sentence, Ans. at 38, that petitioner changed theories on how Ms. Clarkson got

bruises on her arms. See 47 RT 9269-75 (Do’s argument). Actually, the defense

explanation (true to the record) was that no bruises were documented at the scene

by the criminalist inspecting the body,9 and that if indeed there were bruises,

other explanations could explain them rather than a struggle, especially given that

there were no signs of a struggle at the house. These defense arguments were

amply supported by evidence of the prosecution witnesses. It was the

prosecution’s evidence from Dr. Pena about the bruises that so dramatically

changed and provided evidence of multiple mechanisms of causation.10

Next, respondent attempts to justify the denigration of the defense by

9 See 47 RT 9395: “Neither Jaime Lintemoot nor Barbara Nelson, both of the

criminalists working for the Coroner's office, said anything about bruises on the

body in their reports.”

10 Thus, Dr. Pena originally could not identify the bruises as having anything to do

with a struggle and testified it was possible the bruises were caused when

Clarkson's arms hit the chair after the shot or that she had received them earlier at

work. 21 RT 4124-4128. Before the grand jury, he testified he could not give an

opinion as to the cause of the bruises. 21 RT 4118-4119. He also previously

testified he could not tell whether the bruises occurred at the same time. 24 RT

4691. But at petitioner's trial, he told the jury he was sure they were from a

struggle and not just consistent with a struggle. 21 RT 4118. Then he promptly

retreated by saying the bruises could be “consistent with struggle.” 21 RT 4142,

and admitted there were “other readily available causes for these bruises.” 24 RT

4684-4685. Indeed, he agreed with studies concluding timing of bruises cannot be

precise. 21 RT 4140.




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arguing that defense counsel initially relied on Lintemoot’s testimony but then

changed positions. Ans. at 38. But once again, it was Lintemoot who changed.

More precisely, she initially failed in her duties to document spatter location on

the hands while at the scene and then at the second trial agreed with the defense

as to the location of spatter. She documented blood on the left portion of the back

of the right hand and the right portion of the back of the left hand. 18 RT 3298.

Only after she was excused as a witness did the prosecution phone her and inform

her “there was some confusion as to the area the blood spatter was in and asked

me to come back and clarify that.” 18 RT 3385. On recall, she testified she did

not agree with defense counsel about the position of apparent spatter (i.e.,

retracting what she had agreed to in her testimony before being recalled). She

then said she saw spatter in the wrist joint with a radius of 2-3 inches. 18 RT

3391.11

At the first trial, Dr. Herold testified that the scientific evidence did not

allow a conclusion of homicide or suicide. 26 RT 5068, 5071, 5269, 5273. This

changed in the second trial based on her having been told of Lintemoot’s second

trial testimony, at least the portion given when she was recalled to the stand. Dr.

Herold testified that the first time she heard about the Lintemoot version of the

location of spatter on the back of Clarkson’s wrists was December 30, 2008.

Except for this information about blood mist on the back of Clarkson’s wrists,

there was nothing in evidence inconsistent with Clarkson’s having shot herself.

26 RT 5071. Yet, in 2003, Dr. Herold had discussed with Lintemoot the issue of

spatter. 27 RT 5358. As Dr. Herold testified, her answer to the hypothetical

question about the cause of death being homicide was based on Lintemoot’s new

11 Dr. Pena, who conducted the autopsy, did not mention any spatter on the back of

Clarkson’s hands when he examined her and the photographs taken do not show

spatter. 28 RT 5600.




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found memory. 26 RT 5069; 27 RT 5353. All of this morphology of the

testimony on spatter location was fair game for defense argument and amply

supported by the record. None of it supported a prosecution argument that

defense counsel could not bear to stand on the truth when “it no longer suits their

purpose.” Ans. at 38.

Defense counsel asked the jury not to decide the case on emotion, but on

facts and evidence. 47 RT 9344. He argued, based on evidence, that intraoral gun

shot deaths are almost always suicides: “that is true more than 99 percent of the

time,12 look at the surrounding scientific facts which completely support that that

is what must have happened and ignore it? How do you ignore it?” 47 RT 9353.

He then noted that the prosecution’s case obviously dismissed this evidence

without good reason: “And all of the physical evidence supports that it was self-

inflicted, and to say ‘that is just a statistic, and I’m not going to bother with that,’

is to ignore reality, is to choose to ignore reality, to choose to ignore truth and go

look for an excuse.” 47 RT 9353. This was in reference to Dr. Pena, who testified

he did not rely on statistics to come up with his conclusions. 23 RT 4466, 4581.

It is the above statement that respondent latches on to justify the

prosecution’s statements as a “responsive answer to defense counsel’s argument.”

Ans. at 40. But, as noted, the denigration campaign started before defense

counsel spoke to the jury and made the above statement in reference to Dr. Pena’s

ignoring the statistical truth that intraoral shootings are almost always suicides.

Again, this could not support the prosecution’s campaign against defense

counsel’s integrity.

/ /

12 In fact, 99% of intraoral shootings are suicides. 34 RT 6503, 40 RT 7692. Dr.

Lakshmanan, with 17 years of experience, testified intraoral gun wounds are

almost always self-inflicted. 31 RT 6055.




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C. The Prosecution Arguments Were Not Fair orSupported by the Record, And Denied PetitionerDue Process

Respondent argues that the prosecutors’ statements “merely urged the jury

to believe its interpretation of what happened to Clarkson rather than the defense

interpretation.” Ans. at 32. Certainly, the prosecution argued its interpretation of

the evidence was the more credible, but then, based on no evidence, attacked

defense counsel as disinterested in the truth, trying to shape shift the evidence,

and doing so by “buying” experts to say whatever he wanted.

Respondent cites Darden v. Wainwright, 477 U.S. 168, 181 (1986) as the

clearly established law on the subject. Darden, in turn, adopted the standard of

Donnelly v. DeChristoforo, 416 U.S. 637 (1974), which asks if prosecutorial

misconduct “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Id. at 643.

Respondent then argues there is no Supreme Court authority that supports

relief. Respondent states lower court authority is not controlling, to which

petitioner has no quarrel. Ans. at 41. Petitioner cites the published Court of

Appeal cases as examples of misconduct found to deny due process under

Darden. Petitioner notes that respondent cites three unpublished district court

cases as examples of discussions of the issue of prejudice in its own brief. Ans. at

44.

Darden has been most recently applied by the high court in Parker v.

Matthews, 132 S.Ct. 2148 (2012), also relied upon by respondent at Ans. 32-33.

There, the Sixth Circuit found due process misconduct in the prosecutor’s

“suggesting that [the defendant] Matthews had colluded with his lawyer, David

Busse, and with [his mental state expert] Dr. Chutkow to manufacture an extreme

emotional disturbance defense.” 132 S.Ct. at 2153. The Circuit suggested that the

prosecutor “denigrated” the defense of extreme emotional disturbance by stating:

“[i]t’s the defense of last resort, Ladies and Gentlemen. He has no excuse for his




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conduct, but that’s his only way out.” Id. at 2154-55.

Not only were the comments in Parker tame, but the Supreme Court noted

that the Circuit omitted from its discussion a cental part of the summation in

which the prosecutor told the jury: “And that’s not to say that Mr. Busse [defense

counsel] is unethical. Not at all. He is entitled to the best defense he can get, but

that’s the only defense he has, what the doctor has to say, and that’s not to say

that the doctor gets on the stand and perjures himself. He’s telling you the truth.

He wouldn’t perjure himself for anything. He’s telling you the truth, Ladies and

Gentlemen.” Id. at 2154. No such statement extolling defense counsel as ethical

and as providing the best defense, or stating that the experts were telling the truth,

is found in this record.

The Darden standard is general, but that does not mean that anything stated

by a prosecutor and upheld by a state court will be upheld on federal habeas

corpus as not running afoul of due process.

D. There Was Actual Prejudice From the Due ProcessMisconduct

Respondent argues that the statements at issue were “isolated” and a

relatively small part of its presentation. Ans. at 44. As shown, the comments

were peppered throughout the prosecution opening and the closing portions of its

final arguments to the jury.

Next, respondent relies on a statement of the court made at the end of the

case as part of the general instructions where the court stated that arguments are

not evidence. The statement was buried amidst all the instructions, 48 RT 9658,

and gave no direction to the jury concerning the attacks on defense counsel’s

integrity. This was neither a “timely” instruction, as respondent suggests, Ans. at

44, nor did it address in any way the issue of the propriety of the prosecution’s

attacks on defense counsel. The instruction was not curative. As the Fifth Circuit

observed, “if you throw a skunk into the jury box, you can’t instruct the jury not




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to smell it.” United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) (internal

quotation marks omitted).

Jurors cannot be expected to remain impartial when inflammatory

information that should not have been mentioned permits them to believe defense

counsel tried his best to “hide the truth” from them by repeated “machinations.”

These statements, coming from the prosecution, would not be forgotten.

Finally, respondent argues “overwhelming” evidence made any error

harmless. Ans. at 44-45. But in citing the evidence to support this notion,

respondent omits mention that all of this evidence was hotly contested such that

the initial jury, with the same evidence before it (except for that provided by the

trial judge and Lintemoot/Herold’s changes in the second trial), could not reach a

verdict. Further, even assuming arguendo there was strong evidence, the Brecht

v. Abrahamson, 507 U.S. 619 (1993) standard focuses on whether the errors had a

substantial and injurious effect or influence on the jury verdict. See petitioner’s

memorandum of points and authorities supporting the petition, pp. 64-66; see

especially n.13 at pp. 65-66.

In sum, the prosecution arguments “so infected the trial with unfairness as

to make the resulting conviction a denial of due process.” Darden, 477 U.S. at

181. This due process violation was highly likely to have affected the jury

verdict substantially and every reasonable jurist would at least have a grave

doubt, O'Neal v. McAninch, 513 U.S. 432, 438 (1995), about whether the

misconduct substantially and injuriously influenced the verdict.

/ /

/ /

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/ /

/ /

/ /




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CONCLUSION

For the above stated reasons, the Court should grant the petition.

DATED: November 9, 2012 Respectfully submitted,

DENNIS P. RIORDANCHARLES M. SEVILLA

RIORDAN & HORGAN

By /s/ Dennis P. Riordan Dennis P. Riordan

Attorneys for PetitionerPHILLIP SPECTOR




phillip spector reply brief supporting writ of habeas corpus filed by dennis riordan 11-9-2012

Documents

page id

sjopla document

united states ex

united states district

integrity of defense

petitioner phillip spector

prejudicial misconduct

trial judges statements