Packer

Opinion by Judge PREGERSON; Dissent by Judge SILVERMAN

In 1992, a California state jury convicted William Packer (“Packer”) of one count of second degree murder, one count of attempted murder, two counts of attempted robbery, two counts of assault with a deadly weapon, and one count of assault with a firearm. The jury acquitted Packer on ten other counts.

After exhausting his claims in state court, 1 Packer timely filed a federal habeas corpus petition. Magistrate Judge Margaret Nagle prepared a report (“Report”) recommending that Packer’s petition be denied. District Judge Harry L. Hupp adopted Magistrate Judge Nagle’s Report, but granted Packer a certificate of appeal-ability on two of Packer’s claims: that the state trial judge violated his Fourteenth Amendment right to due process by coercing the jury into rendering a guilty verdict, and that the state trial judge violated Packer’s Sixth and Fourteenth Amendment rights by ordering him to wear a concealed leg brace at trial that caused Packer pain* and prevented him from straightening his leg. Because we hold for Packer on the first claim, we reverse the district court and remand with instructions to grant the writ of habeas…

dissenting:

I respectfully dissent over two points.

I. The Jury Issue

The majority glosses over a key fact concerning the jury problem: Defense counsel was aware of everything the judge had said and done, but instead of moving for a mistrial, defense counsel implored the judge to keep Radcliff on the jury and stated that he had no objection to allowing the deliberations to continue.

On the afternoon of May 15, the judge informed counsel of Radcliff s “public beating” note. Defense counsel responded:

(Emphasis added.)

The judge then stated his intention to interview Radcliff in chambers in the presence of both counsel. Before the interview began, defense counsel made it clear to the judge that he did not want to lose Radcliff as a juror:

Just before the interview commenced, defense counsel objected to the procedure of singling out Radcliff for interview on the grounds that the procedure would pressure her to “change her vote or be excused.” However, after Radcliff was questioned and had left the room, defense counsel made only one statement: “Sounded like an intelligent, articulate person who has a difference of an opinion.” He no longer voiced any objection to the…