Richard Tuite v. Michael Martel

dissenting:

Tuite is entitled to habeas relief only if the error had a substantial, injurious effect on the verdict. Slovik v. Yates, 556 F.3d 747, 755 (9th Cir.2009). Because the excluded cross-examination would likely have discredited both the prosecution’s and defense’s experts, and would have proven relatively unimportant in light of the other evidence at trial, I would affirm the denial of habeas relief.

In assessing the effect of the error on the verdict, we assume that the damaging potential of the cross-examination would have been fully realized. Id. As the state court described, the cross-examination would have revealed McCrary’s strong personal bias toward the prosecution and against O’Toole, his belief that Tuite was guilty, and his ability to exaggerate.

However, the potential damage cut both ways. O’Toole’s own credibility likely would have been sullied. In a cross-examination outside the jury’s presence, McCrary explained that O’Toole’s report of the crime had been “pulled” and that he had prepared the letter at someone else’s request for an ethics investigation. The jury might also have been influenced by McCrary’s assessment of Tuite’s guilt, given McCrary’s…

ORDER

The memorandum disposition filed on September 8, 2011 is hereby withdrawn. A new disposition will be filed.

The majority of the panel votes to deny the petition for rehearing. Judge Callahan votes to grant the petition for rehearing. Judge Berzon votes to deny petition for rehearing en banc and Judge Noonan recommends denying the petition for rehearing en banc. Judge Callahan votes to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. RApp. P. 35.

The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.

No further petitions for rehearing and for rehearing en banc will be entertained.

MEMORANDUM *

Richard Raymond Tuite appeals the denial of his petition for a writ of habeas corpus. Applying Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d *703 353 (1993), and holding that there is at least “grave doubt” as to whether the confrontation clause error at issue had a substantial and injurious effect or influence on the verdict, we reverse and remand. See Pulido v. Chrones,…

FACTS AND PROCEEDINGS

On January 20, 1998, Stephanie Crowe, aged twelve, was stabbed nine times

by knife in her own bed in her own bedroom. She had been on the phone about

p.m. and died before midnight. Her body was discovered by her grandmother

about 6 a.m., the next day.

Within two weeks of her death, the Escondido police had identified three

teenage boys as suspects, had interrogated them, and had obtained confessions. On

May 22, 1998, these suspects were indicted for Stephanie’s murder. The district

attorney of San Diego County prepared the case for trial, calling on an F.B.I.

expert, Mary Ellen O’Toole, for help in developing the case. But in February

1999, the state Attorney General dismissed the indictments without prejudice. This

court recently reversed the dismissal of a § 1983 lawsuit brought by the former

suspects against the investigating police officers, so that case is going forward. See

Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010).

Here, however, we consider only the record as it developed in Tuite’s

criminal trial. That record shows that the day after Stephanie’s death, the police

picked up Tuite, an itinerant known to have been as…