Adilao Ortiz v. James Yates

I. Factual and Procedural Background

A. Pre-Trial Proceedings

On February 10, 2001, Miriam, accompanied by her mother, father, and sister, went to the Santa Barbara Police Department to report an alleged assault by her husband the previous evening. There she was interviewed by Officer James Fuller. Miriam, who was four months pregnant at the ORTIZ V . YATES

time, had severe bruising to her mouth and left eye, and a swollen knee. She represented to Officer Fuller that she received these injuries when her husband punched her in the face and kicked her following an argument about money. Ortiz was subsequently charged with corporal injury to his spouse in violation of California Penal Code § 273.5.

In the months leading up to her husband’s trial, however, Miriam would not assist the prosecuting authorities. She declined to speak with District Attorney (“D.A.”) investigators, telling them she was “not going to help [them] put [her] husband in jail.” The prosecuting attorney, Deputy District Attorney Joshua Lynn, anticipated that if called to testify at any point, Miriam would attempt to “save[]” her husband from conviction.

Miriam also assisted her husband’s…

Opinion by

Dissent by Judge FERNANDEZ.

OPINION

BERZON, Circuit Judge:

Petitioner Adilao Juan Ortiz (“Ortiz”) was convicted by a jury of willful infliction of corporal injury to his spouse in violation of California Penal Code § 273.5. At trial, Ortiz’s wife, Miriam Ortiz (“Miriam”) testified on behalf of the prosecution. Ortiz maintains that he was denied his Sixth Amendment right to confront adverse witnesses when the trial judge precluded his trial counsel from asking Miriam whether she was afraid to deviate from her initial incriminating statement to the police because of threats allegedly made against her by the prosecutor. The District Court denied Mr. Ortiz’s petition for habeas corpus. We reverse.

I. Factual and Procedural Background

A. Pre-Trial Proceedings

On February 10, 2001, Miriam, accompanied by her mother, father, and sister, went to the Santa Barbara Police Department to report an alleged assault by her husband the previous evening. There she was interviewed by Officer James Fuller. Miriam, who was four months pregnant at the time, had severe bruising to her mouth and left eye, and a swollen knee. She represented to Officer Fuller that she received these…

dissenting:

I respectfully dissent because even if there was a violation of the confrontation clause, a question on which I do not opine, habeas corpus relief cannot issue unless that constitutional violation had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710, 1714 , 123 L.Ed.2d 353 (1993). Otherwise, the error was harmless. Id. In making a determination, I will apply the harmless error considerations that have been delineated by the Supreme Court for confrontation clause purposes. See Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674 (1986); United States v. Miguel, 111 F.3d 666, 671-72 (9th Cir.1997). I do so because this is not a case where all cross-examination of the witness was precluded; 1 although cross-examination was limited in one respect, it was otherwise permitted. 2 Thus, I will assume that “the damaging potential of the cross-examination [was] fully realized” and then go on to determine whether I “might nonetheless say that the error was harmless.... ” Van Arsdall, 475 U.S. at 684 , 106 S.Ct. at 1438 . That “depends upon a host of…