Tuesday, April 13, 2010
Court: State’s Nondisclosure of Immunity Deal Not Prejudicial
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals ruled yesterday that the state’s failure to disclose a letter to an eyewitness promising not to prosecute him for his drug-dealing activities did not prejudice four teenagers convicted of killing the 16-year-old son of a Los Angeles Police Department officer in 1995.
A jury convicted Brandon Hein, Micah Holland, Jason Holland and Tony Miliotti under the felony murder rule in the stabbing death of Jimmy Farris after finding that the murder was committed during a burglary and the attempted robbery of marijuana kept for sale by the witness, Farris’ friend Michael McLoren.
Hein and Miliotti, then 17, and the Hollands—then 15 and 18, respectively—were tried jointly as adults and convicted after a two-month trial. Jason Holland was sentenced to life without the possibility of parole for the slaying. His younger brother and Hein are currently serving prison sentences of 29 years to life, and Miliotti is serving a sentence of 19 years to life.
A documentary film called “Reckless Indifference” was made in 2000 about the murder, trial and resulting prison sentences.
After their direct appeals had concluded, the four filed petitions seeking habeas relief in the California Supreme Court, raising a claim for the first time based on the alleged nondisclosure of a letter by the district attorney dated July 10, 2005, offering use immunity in exchange for McLoren’s testimony at the murder trial.
California’s high court summarily denied the petitions, and Hein, the Hollands and Miliotti then sought habeas corpus in federal court. U.S. District Judge S. James Otero of the Central District of California adopted the magistrate judge’s 78-page report and recommendation finding that the petitioners failed to establish the prejudice required to overturn their convictions.
U.S. District Judge David G. Trager of the Eastern District of New York, sitting by designation, agreed that the prosecution had failed to disclose the letter to Jason Holland and Hein and made improper comments in summation.
However, he disagreed with the petitioner’s claim that the prosecution presented false evidence at trial and concluded that any errors, to the extent they existed, were not prejudicial.
Trager noted that the substance of the July 10 letter had been discussed at a juvenile fitness hearing attended by Micah Holland and Miliotti. Miliotti’s habeas counsel admitted that he knew about the letter when Miliotti’s case was in juvenile court, but the attorneys for the other petitioners all insisted that they had not been apprised of the letter’s existence.
Although Micah Holland’s trial counsel had not been present at the juvenile fitness hearing, Trager reasoned, the failure to discover the letter was the result of defense counsel’s carelessness, rather than the prosecution’s alleged misconduct, since a transcript of the proceeding was made available to the attorney.
However, since Jason Holland and Hein did not participate in the juvenile fitness hearing and the record was silent as to whether transcripts from that hearing were made available to them, Trager said they could establish a Brady violation.
Turning to whether the prosecution presented false evidence or failed to correct false testimony by failing to disclose the letter to Jason Holland and Hein, Trager posited that “the critical point of McLoren’s testimony, to wit, that he could still be prosecuted for marijuana possession or sale, was true.”
Even though McLoren failed to mention the July 10 letter, Trager said, “his testimony, viewed in its entirety, conveyed to the jury an accurate picture of his legal situation.”
Trager also noted that McLoren never denied having received immunity, and that even though McLoren omitted mention of his immunity while listing the reasons for his willingness to testify, none of those reasons McLoren identified were factually false.
The jurist added that the prosecutor had no duty to specifically question him about the July 10 letter or to clarify McLoren’s answers to open-ended questions about why he decided to testify.
As for the petitioners’ other claims of prosecutorial misconduct, Trager acknowledged that the prosecutor had engaged in improper argument in a number of instances during his closing argument, but posited that the summation, when viewed in the context of the entire record, did not render the trial fundamentally unfair.
“[M]uch of the potential prejudice of the prosecution’s comments was mitigated,” Trager said, pointing out that the trial court sustained a number of objections and gave timely cautionary instructions to the jury, and that the prosecutor made the comments in the course of several days of summation after a two-month trial.
The judge explained that even the most “problematic” comment—which “could have been taken to mean that McLoren exposed himself to prosecution for marijuana dealing by testifying,” or “that McLoren’s testimony exposed him to charges of perjury if he lied on the stand”—was made only once in a summation that took up 84 pages of transcript, and even if given the more damaging interpretation, would have bolstered McLoren’s testimony only “a negligible amount,” since the witness had little incentive to lie.
“The nondisclosure of the July 10 letter does not affect this conclusion,” Trager continued, since the combined effect of the misconduct did not deprive the petitioners of a fair trial and the letter “was not the potent impeachment evidence petitioners make it out to be” since none of McLoren’s testimony would have been exposed as untruthful, even if the defense had confronted McLoren with the grant of immunity.
Judges Andrew J. Kleinfeld and Richard C. Tallman joined Trager in his opinion.
The attorneys on the case were William J. Genego of Santa Monica on behalf of Hein; Tracy Dressner of La Crescenta on behalf of Miliotti; Manuel A. Abascal and Daniel R. Seltzer of Latham & Watkins LLP, with New York attorney Scott P. Lawrence, on behalf of Micah Holland; UC Irvine Law School Dean Erwin Chemerinsky on behalf of Jason Holland; and Supervising Deputy Attorney General Victoria B. Wilson.
The case is Hein v. Sullivan, 07-56277.
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