Robert E. Kennedy v. Bill Lockyer, Attorney General, State of California

379 F.3d 1041 Robert E. KENNEDY, Petitioner-Appellant, v. Bill LOCKYER, Attorney General, State of California, Respondent-Appellee. No. 01-55246. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 5, 2003. Filed June 14, 2004. Amended August 18, 2004. Jeff Dominic Price, Esq., Santa Monica, CA, for the appellant. Lora Fox Martin and Anthony DaSilva, Deputy Attorney Generals, San Diego, CA, for the appellee. Appeal from the United States District Court for the Southern District of California; Barry Ted Moskowitz, District Judge, Presiding. D.C. No. CV-99-02505-BTM. Before REINHARDT, O'SCANNLAIN, and FISHER, Circuit Judges. Opinion by Judge REINHARDT; Concurrence by Judge FISHER; Dissent by Judge O'SCANNLAIN REINHARDT, Circuit Judge: 1 Robert Kennedy was tried twice on a charge of selling 0.08 grams of a substance in lieu of a controlled narcotic drug — a substance that looked like an illegal drug but wasn't — to an undercover police officer for $20. The first trial ended in a hung jury: four jurors favored finding Kennedy not guilty; eight jurors thought him guilty. Prior to his second trial, Kennedy twice asked the state court to provide him with…

Opinion by Judge REINHARDT; Concurrence by Judge FISHER; Dissent by Judge O’SCANNLAIN

Robert Kennedy was tried twice on a charge of selling 0.-08 grams of a substance in lieu of a controlled narcotic drug — a substance that looked like an illegal drug but wasn’t — to an undercover police officer for $20. The first trial ended in a hung jury: four jurors favored finding Kennedy not guilty; eight jurors thought him guilty. Prior to his second trial, Kennedy twice asked the state court to provide him with a complete transcript of the earlier proceed *1043 ing. It refused to do so. Instead, it granted him only the portion of the transcript that contained the witnesses’ testimony and denied him the portion that contained the parties’ motions and the court’s rulings thereon, as well as the court’s instructions and the parties’ opening statements and closing arguments.

At the second trial, Kennedy was represented by a new attorney who proceeded without the aid of a complete transcript of the prior trial. Aware that the new attorney did not have the full transcript, the state introduced evidence intended to show gang involvement on Kennedy’s part — evidence that had been excluded from…

concurring:

I fully concur in the majority opinion, but want to respond specifically to the dissent’s suggestion that our conclusion that there was prejudice results from “law-yering from the bench.”

The dissent seems to forget that this habeas appeal arises from a criminal case in which the constitutional right of the defendant to a fair trial is the issue, not just “litigation” in which someone wins or loses according to his lawyer’s skill, or lack of it. As such, the court’s pursuit of the issue of prejudice with the state’s attorney — charged with upholding the fairness of the criminal justice system in the course of prosecuting defendants — was not law-yering; it was judging.

United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir.1993).

The issue of prejudice was not some hidden, esoteric legal point the parties or the court was unaware of — indeed, the trial judge in the first trial had addressed the highly prejudicial nature of “gang” testimony and precluded the very kind of questioning the state introduced at the second trial. Even had there been no oral argument in this case, the record and written arguments before the court were quite sufficient for us to evaluate the…

dissenting:

This case represents a triumph of law-yering from the bench. While I share some of the court’s evident sympathy for the defendant — whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer 1 — I respectfully dissent from its decision to step into counsel’s shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law.

I

There is no dispute that Kennedy was entitled to some portion of the transcript from his first trial on these charges. See generally Britt v. North Carolina, 404 U.S. 226 , 92 S.Ct. 431 , 30 L.Ed.2d 400 (1971). The only issue before the court is whether clearly established Supreme Court precedent requires the State to have provided him with a complete transcript, including opening and closing arguments and a recounting of any preliminary trial motions. The majority cites no Supreme Court case that extends Britt beyond a requirement that a transcript of all testimonial evidence adduced in prior proceedings be made available to indigent defendants; it finds its clearly established Supreme Court precedent not in the U.S. Reports, but in…