George E. Myers v. State of Washington

This case is before us on remand from the Supreme Court. Washington v. Myers, 456 U.S. 921 , 102 S.Ct. 1964 , 72 L.Ed.2d 436 (1982). The Court vacated an earlier opinion, Myers v. Washington, 646 F.2d 355 (9th Cir.1981), and remanded for further consideration in light of Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982), and United States v. Frady, 456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982).

Both of the recent Supreme Court decisions and Myers, the instant ease, involve the same type of situation — a collateral attack on a criminal conviction, based on alleged violations at trial of legal rules that were not announced until after the trial and the direct appeal. Thus in all three cases no objections to the alleged trial errors were made at trial or on appeal.

In the instant case, appellant Myers challenged certain of the jury instructions given at his trial, contending that they improperly shifted to him the burden of disproving an element of the charged offense. In our previous decision, we held that, even if appellant’s failure to object to the jury instructions at trial or on appeal brought into play the rule of Wainwright v. Sykes, 433 U.S. 72…

dissenting.

Again I must dissent as I did originally in Myers v. Washington, 646 F.2d 355 (9th CSr.1981) (Myers I).

In Myers I, I thought and said that the majority was wrong in its insistence that the objection which Myers had not presented at his trial (that the instruction of which he complains violated the due process clause) was not barred by Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). The majority proclaimed, and now reiterates, that in the decade of the Sixties lawyers who tried criminal cases in state courts were generally not aware that a jury instruction which shifted to the defendant in murder cases the burden of negating malice aforethought raised serious constitutional problems. This is simply not so, as any veteran lawyer who tried such cases during that time can attest. The professional skill and concern which clients have a right to expect from lawyers who undertake representation in the gravest of felonies most certainly included the understanding that such constitutional issues were at hand and needed to be asserted for the sake of the person on trial. I repeat, it is not true that competent counsel were mainly unaware of the…

702 F.2d 766 George E. MYERS, Petitioner-Appellant, v. STATE OF WASHINGTON, et al., Respondents-Appellees. No. 80-3031. United States Court of Appeals, Ninth Circuit. March 28, 1983. Samuel D. Ellis, San Francisco, Cal., for petitioner-appellant. David R. Minikel, Olympia, Wash., for respondents-appellees. Appeal from the United States District Court for the Eastern District of Washington. Previously decided May 26, 1981, 646 F.2d 355 (9th Cir.1981). Before PREGERSON, POOLE and NORRIS, Circuit Judges. PREGERSON, Circuit Judge: 1 This case is before us on remand from the Supreme Court. Washington v. Myers, 456 U.S. 921 , 102 S.Ct. 1964 , 72 L.Ed.2d 436 (1982). The Court vacated an earlier opinion, Myers v. Washington, 646 F.2d 355 (9th Cir.1981), and remanded for further consideration in light of Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982), and United States v. Frady, 456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982). 2 Both of the recent Supreme Court decisions and Myers, the instant case, involve the same type of situation--a collateral attack on a criminal conviction, based on alleged violations at trial of legal rules that were not announced until…