# Opposition Brief — Glebe v. Frost, 135 S. Ct. 429 (2014) (No. 14-95)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2014

## Text

No. 14-95

IN THE SUPREME COURT OF THE UNITED STATES

PATRICK GLEBE, Superintendent,
Stafford Creek Corrections Center,
Petitioner,

-V.-

JOSHUA JAMES FROST,
Respondent.

MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS

Respondent Joshua James Frost, through counsel, asks leave to file the
attached Brief in Opposition to Petition for Writ of Certiorari in forma pauperis.
Respondent was represented on appeal by counsel appointed under the Criminal
Justice Act, 18 U.S.C. § 3006A(a\(2\B). This motion is brought pursuant to Rule
39.1 of the Rules of the Supreme Court of the United States.

Respectfully submitted

September 29, 2014 By

ERIK B. LEVIN

Counsel for Respondent

No. 14-95

IN THE SUPREME COURT OF THE UNITED STATES

PATRICK GLEBE, Superintendent,
Stafford Creek Corrections Center,
Petitioner,

-V.-

JOSHUA JAMES FROST,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ERIK B. LEVIN

Counsel of Record
LISSA W. SHOOK
Law Office of Erik B. Levin
2001 Stuart Street
Berkeley, California 94703
(510) 978-4778
erik@erikblevin.com

Counsel for Respondent
Joshua James Frost

TABLE OF CONTENTS

I sosisuensatemnnennonnbnennt il
I eemesianentanon l
I. The Sixth Amendment Right to Present Proper Argument in

EEE l
Il. The Trial Court Barred Mr. Frost From Challenging the

Sufficiency of the Evidence in Summation....................ccccceseeeees 3
III. Washington State Proceedings .................ccccccccesssesereeeeerseeeseeeneeeeees 5
IV. Federal Habeas Proceedings ..................c.ccccccccccceseseeseseesereeeeseeeeenens 6

REASONS FOR DENYING THE WRIT ............:.:-::cccecccccccseccseseseecseecesseseecerenees 8

I. This Case Is a Poor Vehicle for Assessing Under What

Circumstances Less-Than-Complete Denials of the Right to

Present Summation Are Subject to Harmless Error. .................... 4
Il. There is No Circuit Split on Whether Less-Than-Complete

Denials of Summation Are Subject to Harmless Error. ................ )
Ill. The Ninth Circuit Did Not Rely on Circuit Precedent as

Cloasly Botabbliatied Law. ....1.2.0scscsceccssscesesesossesesesseseesescsesesecserovees 14
IV. The State Seeks Error Correction, and Its Argument

ESE cha LE SEs en 16

A. The Sixth Amendment Right to Present Proper Argument
in Summation Is Clearly Established. .....................cccccceceee 17

B. The Ninth Circuit Opinion Is Consistent with this Court's
Structural Error Case Law. ...............ccccccccccccccccssscsssscccesceseees 26

C. The Ninth Circuit Opinion Does Not Conflict with a
Federal Due Process Case or State Affirmative Defense

EE SL EE ee oa ae 31
i csisnonatibal 35
a ssiniienopaninnnemnest la

TABLE OF AUTHORITIES

Page(s)
Cases
Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) .........cccccccccccscseseseeeceeeeeeeeeees 23
Arizona v. Fulminante, 499 U.S. 279 (1991) ........ccccsescsssssssesseseenesesneneenenseesees 27
Batson v. Kentucky, 476 U.S. 79 (1986) ...........0.:.c.cssscecsesessesesesesesersesseccecececeees 24
ay A ey ES SINE cvs cnesiconscicnsinensnieceniinitsinetniieaiiabianiniidiiaiil 3, 24, 26
Berkemer v. McCarty, 468 U.S. 420 (1984).........cccccccccssssssssssesesesesesesssesereeeserers 25
Bradshaw v. Rickey, 546 U.S. 74 (2005)...............cssscsessessecessesecsessessseceeeneneens 32
Brooks v. Tennessee, 406 U.S. G05 (1972) ..............ccceccesessesessesntsesensseeneeenenesees 29
Carella v. California, 491 U.S. 263 (1989) ..............scecsecsnesnessvesnessneeneeneceneneesees 30
Carey v. Musladin, 549 U.S. 70 (2006) .............cesssssssesssssssessesneensseenesnssecessecesees 23
Chapman. v. California, 386 U.S. 18 (1967) ...........ccccsccsesnesnssneeneseesesnesnesvennenees 28
Conde v. Henry, 198 F.3d 734 (9th Cir. 2000) .............ccecccseseeseseeseeeeeeeees 8, 15, 16
Connecticut v. Arline, 223 Comm. 52 (1992) ............sccsessessesnesnesneenrsneeneees 13, 14
Crane v. Kentucky, 476 U.S. 683 (1986) ..............:co:csccsssecsessssssssessetseressseeeneeees 30
Delaware v. Van Ardall, 475 U.S. 673 (1986) ............cccssessessesessesseeneneeeenreneers 30
Eaglin v. Welborn, 57 F.3d 496 (7th Cir. 1995) ............cccccccceseseeeeseseeeseneees 32, 33
Faretta v. California, 422 U.S. 806 (1975) ............cccssssessessessesssnesnesesseseneneeneers 25

TABLE OF AUTHORITIES—continued

Ferguson v. Georgia, 365 U.S. 570 (1961) .ecccccccccocesssovecssesevssseeensussesesseeeene 29
Frost v. Van Boening, 692 F.3d 924 (9th Cir. 2012)..............cccsecsesvesnessessvenveeens 7
Frost v. Van Boening, 757 F.3d 910 (9th Cir. 2014)...0........cccsecsessesneeseenees passim
GE ©, SR, TG, GRE Ge, TID ccccsccseeccsccncescccsncescsscmnnsnsesennccntntinnans 20
Hedgpeth v. Pulido, 555 U.S. 57 (2008) .......ccccccecsssssvcecssssoseseessssesseseeeeeereeee 28
Herdt v. Wyoming, 816 P.2d 1299 (Wyo. 1991) .........cccccccccccccseseeeeeeeeseseeeeeees 13
IT, I 31
Herring v. New York, 422 U.S. 853 (1975) .........cccsecsesssseesesseseeneseeneeneneenees passim
In re Winship, 397 U.S. 358 (1970) ....ccccccccccssssesseosevvsssvessssseseseseseeeeeeseee passim
Kane v. Garcia Espitia, 546 U.S. 9 (2005) .............-cccccessecececeeesesesesesnereeeeeeneeen 25
SG TER Ci ers GE eeccrcretcncsinsncccersnnteciciicintnnivmnsiintenci 16
Lemos v. Texas, 130 S.W.3d 888 (Tex. 2004) .0.........cccccccccccccoeceseeceeeeesereveeee 12, 13
Lockyer v. Andrade, 538 U.S. 63 (2003).......cccccsccooessusvsssseessssssssasessessenvesne 23
Lynch v. State, 9 Ind. 541, 1857 WL 3659 (1857) .ccccccccccccssccesseevseceeeeseeeeenen 20
Marshall v. Rodgers, 133 S.Ct. 1446 (2013) ..........ccsccsecsecsssnesessessesseenennenreessnes 15
Miranda v. Arizona, 384 U.S. 436 (1966) ............cccccccesesseseesesnsenesesnesnsereerneenees 25
Neder v. United States, 527 U.S. 1 (1999) ..............secsscsesessessessecsessesnseneneees 30, 31
Nelson v. Indiana, 792 N.E.2d 588 (Ind. Ct. App. 2003) ..............-.cccccc000- 12, 13

TABLE OF AUTHORITIES—continued

Panetti v. Quarterman, 551 U.S. 930 (2007) ..........ccccesesseveseeneeneneneeneeneneenes 23
Parker v. Matthews, 132 S.Ct. 2148 (2012) ............c.csesssssssesssssesssnsesssseseenenseees 15
ees Goa, SRT. Sie Ge eer crerccnrsiceenenesinenenamnmeimennies 21
ees Fe, Sb Fae © Qe crrerrctersnecnensneesenetsceentenememneeannen 25
Papen ei, GS Gs Gar Ge cerececeeenemereemmmion 30
Porter v. State, 65 S.E. 814 (Ga. Ct. App. 1909) .............ccccccccceeeeeeeseneeneneenenees 20
Richardson v. Bowersox, 188 F.3d 973 (8th Cir. 1999).............cccseseeeesereneenees 10
SU SR, GS Ba a errscrrccrsresecenreerccemnremenepernmcmseeiine 28, 30, 31
Seattle v. Erickson, 104 P. 1128 (Wash. 1909) ............c-cccccccocecssuesssvesssveseseeseens 21
State v. Ballenger, 24 S.E.2d 175 (S.C. 1943) .......ccccccccccccssssessssssssesesessssneeseenen 21
State v. Frost, 161 P.3d 361 (Wash. 2007)............0.ccssecssesseseeseneseeeceneenes passim
State v. Hoyt, 47 Conn. 518, 1880 WL 2281 (1880)..............sccssesesesseneenenenees 21
State v. Mayo, 86 P. 2561 (Wash. 1906).................c0ccssssorscscesnsnssssesesesssssessvosensees 21
State v. Riker, 869 P.2d 43 (Wash. 1994) ............0...c.cscessscscssssossssssssssssesosesesessees 6
State v. Rogoway, 78 P. 987 (Or. 1904), rehearing, 81 P. 234 (1908).............. 21
State v. Shedoudy, 118 P.2d 280 (N.M. 1941) .........ccsccscsssesvessseeesneseensneneseenenees 20
SP Tens, FEW GR iii ccnnrccccccsssncesecenscavessstscmsesmncemmemenasemsnnssensnnts 21
Gs TERE, TPs Ge: Tie cnrccnscnnnsessnnnsnesecnsessccnsanecscssnnscscsnasessann 20, 21

IV

TABLE OF AUTHORITIES—continued

Stewart v. Commonwealth, 11 A. 370 (Pa. 1887) ...........ccccceseseeseeeseeeneeeeneneneees 20
Strickland v. Washington, 466 U.S. 668 (1984) ...0..........ccccsessesseseseeneeneenenesees 29
Sullivan v. Louisiana, 508 U.S. 275 (1993)......ccssssseessesneseeneseseeeneneenens 26, 28
Swain v. Alabama, 380 U.S. 208 (1966) ................c.cecresesscscsescssssssserssseseoeeseseoes 24
a Sey es CITED coescnrcensnteniniccenenessentesinnncemanienseienneniueéts 24
United States v. Bautista, 252 F.3d 141 (2d Cir. 2001) .0.......ccccccsecceeseeneeenene 11
United States v. Blanche, 149 F.3d 763 (8th Cir. 1998) ..........ccccsccceseeneees nan 8
United States v. Cronic, 466 U.S. 648 (1984) ..........cccscseseseseseneenenees 3, 24, 26, 31
United States v. Davis, 557 F.2d 1239 (8th Cir. 1977) ...000.0.......0ccccececeeeceeeeeee 1]
United States v. DeLoach, 504 F.2d 185 (D.C. Cir. 1974).........ccccccceseseeeeeneees 12
United States v. Gaudin, 515 U.S. 506 (1995)...........cccsccsssesesseseeneseenenenennenes 2
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ..........ccccccsecseneneenees 2, 28
United States v. Miguel, 338 F.3d 995 (9th Cir. 2003) ...........ccccceeeeees 8, 15, 16
United States v. Poindexter, 942 F.2d 354 (6th Cir. 1991) ..........cccccccsseseeeseees 11
United States v. Russell, 411 U.S. 423 (1973) ........sscssesssessesessseseeeeneneneenenenens 32
United States v. Sawyer, 443 F.2d 712 (D.C. Cir. 1971) .......cccccsecsseseseeeeeeeeees 10
United States v. Wilcox, 487 F.3d 1163 (8th Cir. 2007) 0.0... ccccseseeeseeseeneneeee ll
Washington v. Recuenco, 548 U.S. 212 (2006)..............ccccccceseeseeseeeeeseesceseeeeenees 30

TABLE OF AUTHORITIES—continued

Weaver v. State, 24 Ohio St. 584 (1874).............ccccccsscsscssssssssssssesesscesscssssersssess 22
White v. Woodall, 134 S.Ct. 1697 (2014)...............ccesssssssssssssessessessssssenseees 15, 26
Williams v. State, 60 Ga. 367, 1878 WL 2652 (1878)...........csssesereseeneseeneevens 22
Williams v. Taylor, 529 U.S. 420 (2000).........ccsccseccseeseesseseserseesscereerseesessenes 12
Wingo v. State, 62 Miss. 311, 1884 WL 3462 (1884) ............ccccssssseseseseeeneneens 21
Word v. Commonwealth, 30 Va. 743 (1827)..........cccccccecceesceesceseeesceeeeeeceeseeseeees 20
Yarborough v. Alvarado, 541 U.S. 652 (2004) ..0.......ccccccccseeseeseneseeeneenenees 23, 25
a ee, SEE, FF es Sie Co cresencensenneennnesecenrenensccssnsemnaensenenreeensnetins 30
ee Os SI, SE GR BO cocnrcesesnessccersensssnessemencssensnsenennmmenan 21
Yopp v. State, 178 A.2d 879 (Md. 1962) ...............ccecccceseeseseseeeeneeneees 1, 19, 27, 35
Statutes

ee NN sennsrcecneserncsessensnensssneesninitenmenennitesicnsincnmnenmatiiaiiian 8, 22, 23
Constitutional Provisions

I A OT sess amateeentenercmnciiaiegnatitieeeitesteteeadiniatntaill passim
re EET 5

STATEMENT OF THE CASE

I. The Sixth Amendment Right to Present Proper Argument in
Summation

In Herring v. New York, this Court recognized the Sixth Amendmeut
“right of a defendant to be heard through counsel necessarily includes his right
to have his counsel make a proper argument on the evidence and applicable
law in his favor[.]” 422 U.S. 853, 860 (1975) (quoting Yopp v. State, 178 A.2d
879, 881 (Md. 1962)). This Court struck down a New York statute empowering
judges to deny summation in bench trials because the statute violated the
Sixth Amendment by unreasonably restricting defense counsel’s vital role in
the adversarial factfinding process.

Herring recognized the fundamental right to present proper argument in
summation, and did not limit this legal principle to bench trials or to the
complete denial of any summation. Jd. at 858-61. Herring made clear that the
Sixth Amendment left the trial judge “no discretion” to deny the accused the
right to make a proper argument, id. at 860 (quoting Yopp, 178 A.2d at 881),
while acknowledging that a trial judge retained latitude to limit summation to
a reasonable time and ensure that summation did not “stray unduly from the
mark, or otherwise impede the fair and orderly conduct of the trial.” Jd. at 862.

Herring identified the “right to be heard in summation of the evidence

from the point of view most favorable” to the defendant as vital to the
framework of the adversarial criminal trial. /d. at 864. “In a criminal trial. . .
no aspect of such advocacy could be more important than the opportunity
finally to marshal the evidence for each side before submission of the case to
judgment.” Jd. at 862.

The right to present proper argument in summation is essential to due
process because “closing argument is the last clear chance to persuade the trier
of fact that there may be reasonable doubt of the defendant's guilt.” Jd. (citing
In re Winship, 397 U.S. 358 (1970)). Due process requires the prosecution to
prove all elements of the crime beyond a reasonable doubt, see Winship, 397
U.S. at 361, and guarantees the defendant “the right to demand that a jury
find him guilty of all the elements of the crime with which he is charged.”
United States v. Gaudin, 515 U.S. 506, 511 (1995).

Herring found denying a proper argument was per se reversible error
because “[t]here is no way to know whether . . . appropriate arguments in
summation might have affected the ultimate judgment in this case.” Id. at 864.
See United States v. Gonzalez-Lopez, 548 U.S. 140, 149, n.4 (2006) (“[H]ere, as |
we have done in the past, we rest our conclusion of structural error upon the

difficulty of assessing the effect of the error.”) (citations omitted). Accordingly,

this Court consistently treats Herring violations as structural error. See Bell
v. Cone, 535 U.S. 685, 696 (2002); United States v. Cronic, 466 U.S. 648, 659,
& n.25 (1984).

Il. The Trial Court Barred Mr. Frost From Challenging the
Sufficiency of the Evidence in Summation

Mr. Frost was charged with participating in five armed robberies. The
prosecutor’s theory turned entirely on Mr. Frost being an accessory to the
charged offenses. State v. Frost, 161 P.3d 361, 368 (Wash. 2007) (“Frost I’);
Respondent’s Appendix (“Resp. App.”) 4a, 6a-7a. Mr. Frost was not alleged to
have carried a firearm in any of the instances; he acted primarily as a driver,
and remained in the car during four of the five robberies. Frost J, 161 P.3d at
364.' His defense was that there was insufficient evidence to prove he
participated in his accomplices’ criminal acts with adequate knowledge of
promotion or facilitation, and to the extent that he was involved, he was under
duress. Jd. at 364. The Washington Supreme Court noted the evidentiary basis

for Mr. Frost's reasonable doubt argument was “best illustrated by the

! The State erroneously suggests that Mr. Frost was armed and a principal during
the second robbery. See Pet. at . (“They next robbed a fast-food restaurant armed
with guns.”) (citing Frost I, 161 P.3d at 364). The Washington Supreme Court
correctly reported that Mr. Frost “acted as the driver” for that offense and there was
no evidence he was armed. Frost I, 161 P.3d at 364. This was the prosecution’s theory
at trial. See Resp. App. 6a-7a.

robberies in which Frost was only a driver and remained in the car.” Jd. at 368-
9.

Prior to summation, the prosecution moved to preclude Mr. Frost's
reasonable doubt argument: “My concern is we are going to see him get up in
closing and argue, first of all, we haven’t proved accomplice liability for any of
them and then saying duress.” Pet. App. 146a.

The trial court ordered Mr. Frost to concede guilt to preserve his duress
defense: “You cannot argue to the jury that the state hasn't proved accomplice
liability and claim a duress defense. You must opt for one or the other... . You
must admit the elements of the offense have been proved before you can use
the duress offense[.]” Pet. App. 146a. Accordingly, Mr. Frost’s counsel conceded
guilt during summation. See Pet. App. 150a-151a, 153a-154a, 157a, 161a-162a.

The prosecution capitalized on these concessions, arguing that
“noticeably absent” from the defense summation was any discussion of the
relevant law. “There is a reason for that/,|” the prosecution told the jury,
“[bjecause if [defense counsel] had pointed you to the law and pointed to the
elements of the offenses and he pointed to the firearm instruction and made
his argument you would realize that his argument is phoney [sic], his

arguments don’t match up with what the law is and that is really what we are

here for.” Resp. App. 3a.

The jury convicted Mr. Frost, and because the individuals he was alleged
to have assisted carried firearms during the offenses, Mr. Frost was sentenced
to nearly 55 years in prison, 44 years of which were mandatory firearm
enhancements.

III. Washington State Proceedings

On direct appeal, the Washington Supreme Court unanimously
concluded that the trial court erred in precluding Mr. Frost’s legally-available
and factually-supported reasonable doubt argument. The trial court error
violated the “Sixth Amendment right to have counsel make argument to the
jury,” Frost I, 161 P.3d at 367 (citing Herring, 422 U.S. 853); id. at 371 (Sanders
J., dissenting), and “lessened the State’s burden [of proof],” id. at 368, a
violation of the Fourteenth Amendment “due process requirement that the
State prove each element of a charged offense beyond a reasonable doubt.” Jd.
at 367 (citing Winship, 397 U.S. 358).

The state supreme court found there was a legal and evidentiary basis
“for counsel to argue that the State failed to prove Mr. Frost participated in
each of his accomplices’ criminal acts with adequate knowledge or promotion

or facilitation[.]” Id. at 368-9. The trial court erred by misinterpreting state

law to require the defendant to concede guilt before presenting a duress
defense. Jd. at 365 (“We hold the trial court erroneously interpreted our
decision in [State v.] Riker[, 869 P.2d 43 (Wash. 1994),] and, based on that
erroneous interpretation unduly limited the scope of Frost’s counsel's closing
argument, thus abusing its discretion.”). The Washington Supreme Court held
this error was of a constitutional magnitude, and not an exercise of the trial
court’s “latitude in controlling the duration and limiting the scope of closing
summations.” Herring, 422 U.S. at 862 (quoted in Frost I, 161 P.3d at 365). A
bare majority of the court, however, ignored Herring’s admonition that “[t]here
is no way to know whether . . . appropriate arguments in summation might
have affected the ultimate judgment|,]” Herring, 422 U.S. at 863, and
concluded it was “equipped to assess whether the trial court's mistake . . .
affected the outcome of this case” and found the error harmless. Frost J, 161
P.3d at 370.
IV. Federal Habeas Proceedings

Mr. Frost filed a petition for writ of habeas corpus in federal district court
challenging the Washington Supreme Court’s decision to apply harmless error
as an unreasonable application of Herring and Winship. The district court

denied the writ, but certified the issues for appeal. After a split panel of the

Ninth Circuit affirmed the denial of relief, Frost v. Van Boening, 692 F.3d 924
(9th Cir. 2012), Mr. Frost sought en banc review.

The Ninth Circuit, sitting en banc, agreed with the Washington Supreme
Court’s conclusion that the trial court had violated Herring and Winship, but
held that it was unreasonable on the unique facts of this case—including the
state court finding that the error lowered the prosecution’s burden of proof—
to conclude these constitutional violations were trial errors subject to
harmlessness review. Frost v. Van Boening, 757 F.3d 910, 914-15, 917 (9th Cir.
2014) (“Frost II”); see id. at 917 (“a defendant cannot constitutionally be tried
using a lesser burden of proof’) (citing Winship, 397 U.S. at 364-5).

The Ninth Circuit cited Herring's admonition that no matter how “open
and shut” the case may seem, “there are ‘cases where closing argument may
correct a premature misjudgment and avoid an otherwise erroneous verdict.’
‘And there is no certain way for a trial judge to identify accurately which cases
these will be, until the judge has heard the closing summation of counsel.” Jd.
at 916 (quoting Herring, 422 U.S. at 863).

The Ninth Circuit then noted that it was “[flor these reasons we have
held that preventing a defendant from arguing a legitimate defense theory

constitutes structural error.” Frost IJ, 757 F.3d at 916 (citing United States v.

Miguel, 338 F.3d 995, 1000-03 (9th Cir. 2003), and Conde v. Henry, 198 F.3d
734, 739 (9th Cir. 2000)). The court noted that its decisions “do not constitute
‘clearly established Federal law’ for the purpose of 28 U.S.C. § 2254(d)(1)[.]” Id.
at 916, n.1.
REASONS FOR DENYING THE WRIT

This case is unworthy of certiorari for four reasons. First, this case is
unlikely to provide any definitive guidance on when less-than-complete denials
of the right to present summation are subject to harmless error because of the
restricted habeas corpus inquiry. Second, the State cannot identify any circuit
conflict on when less-than-complete denials of summation are subject to
harmless error. Third, this case presents no important issue of federal law
because it is well-settled that courts may not base their conclusion that federal
law is clearly established on circuit precedent, and the Ninth Circuit followed
this proscription. Finally, the petition, at root, seeks error correction, which is
not a basis for granting certiorari, particularly in this case, where the state’s

argument lacks any merit.

I. This Case Is a Poor Vehicle for Assessing Under What
Circumstances Less-Than-Complete Denials of the Right to
Present Summation Are Subject to Harmless Error.

The State does not raise in its Question Presented whether and under
what circumstances less-than-complete denials of summation are subject to
harmless error. Instead, it focuses exclusively on the habeas corpus issue:
whether it is “clearly established” that the type of error here is structural.
Given the restricted focus of this analysis, it is exceedingly unlikely that this
Court would be able to issue a definitive holding that would provide guidance
on this issue in the non-habeas context. Nor is it necessary, since the error is
rare—as evidenced by the dearth of lower court decisions considering it—and

there is a general consensus about how to evaluate its effects.

Il. There is No Circuit Split on Whether Less-Than-Complete
Denials of Summation Are Subject to Harmless Error.

The precise type of Herring error here—precluding defense counsel from
arguing insufficient evidence under circumstances where state law allows him
to do so—is different and more egregious than the other types of denials at
issue in the cases from lower courts that the State cites. Indeed, the State
identifies no other case involving exactly this type of Herring error—one that
by the state court’s own admission, lessened the prosecution’s burden of proof

across the board, not just on one element.

The cases the State cites reaffirm the line Herring drew and the Ninth
Circuit followed: trial courts have discretion “in controlling the duration and
limiting the scope of closing summations[,|” but no authority to deny “closing
argument on a legitimate defense theory.” Frost IJ, 757 F.3d at 915 (quoting
Herring, 422 U.S. at 862).

1. Richardson v. Bowersox, 188 F.3d 973 (8th Cir. 1999), Pet. at 24,
relied on Herring to limit summation to arguments that lacked an evidentiary
basis. Jd. at 979-80 (quoting Herring, 422 U.S. at 862). Richardson concluded
that the trial court limitation was proper because misrepresenting facts in
summation was prohibited and might confuse the jury. Jd. at 980 (quoting
United States v. Sawyer, 443 F.2d 712, 713-14 (D.C. Cir. 1971)). Moreover, the
trial court had permitted the defendant “to argue extensively during closing
argument that he did not participate in the [homicides,]” id. at 980, and
therefore, even if it were error to limit summation to facts in evidence, the court
concluded there would be no “manifest injustice[.]” Jd. Richardson is therefore
in line with the Ninth Circuit’s conclusion that there is no Herring error unless
the court completely precludes a legitimate defense theory. See Frost IT, 757
F.3d at 918 (total preclusion of an argument is constitutional error “which

Herring instructs is structural error. ... Absent Herring error there is no error

10

at all or trial error subject to a harmlessness inquiry.”).

The remaining circuit cases the State cites, Pet. at 24-26, similarly apply
harmless error to summation limitations that fall short of complete preemption
of a legitimate defense theory and do not lower the state's burden of proof.”
Harmless error review this context is entirely consistent with the Ninth Circuit
opinion below. See Frost II, 757 F.3d at 915.

In contrast, the Washington Supreme Court found that precluding Mr.
Frost’s entire reasonable doubt argument did lower the prosecution’s burden
of proof. Frost J, 161 P.3d at 368 (“By preventing counsel from arguing this

point [reasonable doubt] in closing, the trial court lessened the State's

2 See United States v. Wilcox, 487 F.3d 1163, 1173 (8th Cir. 2007) (barring defense
summation argument that suppressed forensic evidence did not exist was harmless
where the trial court did not preclude defendant from presenting his defense theory);
United States v. Bautista, 252 F.3d 141, 145 (2d Cir. 2001) (affirming preclusion of
portions of the defense closing argument that included “objectionable factual
assertions that certain things not offered in evidence do not in fact exist” as an
appropriate exercise of discretion and noting the restriction did not “distort and
effectively lower the burden of proof”) (citing Herring, 422 U.S. 853) (internal
quotations omitted); United States v. Blanche, 149 F.3d 763, 769 (8th Cir. 1998)
(affirming trial court order barring summation on portions of the interview videotape
not in evidence, and in the alternative, it was harmless error because the defense did
refer to the videotape despite the trial court order); United States v. Poindexter, 942
F.2d 354, 359-60 (6th Cir. 1991) (trial court barred comments on the absence of a
particular type of forensic evidence, but did not bar the defense from arguing
insufficient evidence to convict); United States v. Davis, 557 F.2d 1239, 1244 (8th Cir.
1977) (even if trial court erred in limiting the scope of summation, it was harmless
because the court permitted counsel to argue his theory of defense and “did not
instruct the jury to disregard the argument’).

11

burden”). The State has never challenged the Washington Supreme Court's
finding below, and in the interests of comity and federalism, it is entitled to
deference. Cf. Williams v. Taylor, 529 U.S. 420, 436 (2000) (noting “AEDPA’s
purpose to further the principles of comity, finality, and federalism.”).

The State also contends Frost I/ conflicts with a pre-Herring case, United
States v. DeLoach, 504 F.2d 185 (D.C. Cir. 1974), in which the trial court barred
defense counsel from arguing in summation what the court considered factual
misrepresentations, but otherwise permitted him to challenge the sufficiency
of the evidence. The D.C. Circuit reversed under harmless error after
concluding the defense was arguing inferences based on evidence, not
misstating facts in evidence. Id. at 120-22. Frost IT does not conflict with
DeLoach, it simply addresses an issue not raised in Deloach—whether
completely precluding any challenge to the sufficiency of the evidence (when
state law permits such an argument) is structural error under Herring.

2. The State’s attempts to create a split between the Ninth Circuit's
opinion and state courts is equally unavailing. See Pet. at 17 (citing Lemos v.
Texas, 130 S.W.3d 888 (Tex. 2004), and Nelson v. Indiana, 792 N.E.2d 588 (Ind.
Ct. App. 2003)). In Lemos v. Texas, the trial court erroneously precluded the

defense from arguing in summation that the defendant's blood alcohol

12

concentration could have risen during the two-hour period between the car
accident and the blood alcohol test, but permitted him to argue “there was no
evidence of what it [Lemos’s blood alcohol content] had been at the time of the
crash.” 130 S.W.3d at 890, 892. And in Nelson v. Indiana, the trial court
erroneously barred defense counsel from challenging the reliability of forensic
testing during his summation, but permitted him to argue the “poorly tested
evidence” was an insufficient basis to convict. 792 N.E.2d at 594 (emphasis in
original). Neither Lemos nor Nelson involve the “absolute preemption of . . . [a]
factually supported, legally available defense theor[y].” Frost IJ, 757 F.3d at
918.

3. | While the State cannot identify any case that conflicts with the
Ninth Circuit opinion, it ignores those that adopt the very same interpretation
of Herring. In a strikingly similar case, Herdt v. Wyoming, 816 P.2d 1299 (Wyo.
1991), the Wyoming Supreme Court held that precluding the defendant from
arguing consent in addition to reasonable doubt in a sexual assault trial
“deprived appellant of his fundamental right to present closing argument” as
set forth in Herring, and “[s]uch deprivation is legally presumed to result in
prejudice.” Jd. at 1302.

And in Connecticut v. Arline, 223 Conn. 52 (1992), the Connecticut

13

Supreme Court held it was per se reversible error to deny the defendant his
federal Sixth Amendment right to “full and fair participation” in the trial by
depriving him of “any opportunity to argue the motive for bias of the state’s
chief witness” where it was “the linchpin of the reasonable doubt defense” and
precluding it was tantamount to denying the defense altogether. Jd. at 64.
Looking to Herring, Arline held that “the right to present a closing argument
is abridged not only when a defendant is completely denied an opportunity to
argue,” but also “when a defendant is deprived of the opportunity to raise a
significant issue that is reasonably inferable from the facts and evidence ... .
[and] the prohibited argument bears directly on the defendant’s theory of the
case.” Id. at 64 (citations omitted). A “per se rule of automatic reversal more
properly vindicates the defendant's fundamental constitutional right to
assistance of counsel guaranteed by the sixth amendment.” Jd. at 65. (citations
omitted).

Ill. The Ninth Circuit Did Not Rely on Circuit Precedent as
Clearly Established Law.

The State does not identify any real issue of habeas corpus law at stake
in this case. It does not argue that granting certiorari is necessary to resolve
any issue concerning what exactly “clearly established” means. Instead, it

claims that the Ninth Circuit relied on its own precedent to define clearly

14

established federal law in violation of this Court’s directive in White v. Woodall,
134 §.Ct. 1697, 1702, n.2 (2014). This claim is not worthy of certiorari because
this Court has already settled that circuit law may not form the basis of habeas
corpus relief. And more importantly, the State’s argument is contrived.

The Ninth Circuit did not rely on its own precedent to refine Herring’s
principle into a rule this Court has not announced, or to assess the merits of
Mr. Frost's habeas corpus claim. Marshall v. Rodgers, 133 S.Ct. 1446, 1450
(2013) (per curiam) (citation omitted); Parker v. Matthews, 132 S.Ct. 2148,
2155 (2012). The court even noted that its opinions do not constitute clearly
established federal law. Frost IT, 757 F.3d at 916, n.1.

Instead, the single-sentence citation to two circuit cases applying
Herring to similar closing-argument restrictions served only as an example of
the clarity of Herring's principle, Frost IT, 757 F.3d at 916 (citing Miguel, 338
F.3d at 1000-03, and Conde, 198 F.3d at 739), and “merely reflect{ed] what has
been ‘clearly established” by this Court’s cases. Matthews, 132 S.Ct. at 2155.

The Ninth Circuit was explicit on this point. It quoted Herring that “[n]o
matter how ‘open and shut’ the prosecution’s case may seem, there are ‘cases
where closing argument may correct a premature misjudgment and avoid an

otherwise erroneous verdict.” Frost II, 757 F.3d at 916 (quoting Herring, 422

15

U.S. at 863). “And there is no certain way for a trial judge to identify accurately
which cases these will be, until the judge has heard the closing summation of
counsel.” Herring, 422 U.S. at 863 (quoted in Frost IJ, 757 F.3d at 916). And
referring to Herring’s legal principle, the en banc opinion remarked, “For these
reasons, we have held that preventing a defendant from arguing a legitimate
defense theory constitutes structural error.” Frost II, 757 F.3d at 916 (citing
Miguel, 338 F.3d at 1000-03, and Conde, 198 F.3d at 739).
IV. The State Seeks Error Correction, and Its Argument Lacks Merit.
The State requests that the Court grant certiorari to correct what it
believes to be the Ninth Circuit’s erroneous conclusion that the Herring error
here was structural error. Taken on its own terms, the State’s request is for
“simple error correction,” which is net a reason for this Court to grant
certiorari. See Kyles v. Whitley, 514 U.S. 419, 422, n.1 (1995). The State’s
request is particularly inappropriate given that it was the Washington
Supreme Court that concluded the Herring violation lowered the prosecution’s
burden of proof. Frost I, 161 P.3d at 368. Consequently, the intrusion on state
prerogatives in this case is far lessened and the core reason for habeas is
present—to allow for new trials when previous trials were fundamentally

unfair.

16

Moreover, the State is simply wrong. In light of the long line of this
Court’s cases, violating the right to present a legitimate argument in
summation and lowering the prosecution’s burden of proof are structural
errors because they strike at the very framework of the adversarial justice

system and their effects cannot be measured.

A. The Sixth Amendment Right to Present Proper Argument
in Summation Is Clearly Established.

Herring v. New York recognized the right to present proper argument on
the evidence and applicable law in summation as one of the most fundamental
and enduring of the adversarial trial rights. 422 U.S. at 858-62.
Notwithstanding the clarity of Herring on this point, the State argues that the
right to present legitimate argument in summation is not clearly established
because the New York statute at issue in Herring foreclosed summation
altogether. Pet. at 16. The State believes that Herring's rationale for striking
the statute was dictum and Herring means only that the accused has the right
to say something in summation. The State has even argued that, under
Herring, a ten-second summation might be proper, and that Herring permits

the trial court to compel defense counsel to admit his client’s guilt in

17

summation and to preclude counsel from addressing a count entirely.’

1. The State ignores Herring’s legal principle. Herring did not limit
its holding to the complete preclusion of summation, as the State suggests,
although it did limit it to “final argument or summation” instead of “argument
at any other stage” of trial. Jd. at 863, n.13. Instead, Herring recognized the
defendant's broader right to be heard in summation “from the point of view
most favorable to him.” Jd. at 864. It is per se reversible error to deny this right,
Herring concluded, because it is essential to the framework of our adversarial
system of criminal justice, and because “there is no way to know whether . . .
appropriate arguments” would have affected the outcome. /d. at 864. This
reasoning was not dictum. It was an indispensable part of Herring’s rationale,
its holding.

Herring left “no doubt that closing argument for the defense is a basic
element of the adversary fact finding process in a criminal trial.” 422 U.S. at
858. It found “no aspect” of the adversarial process “could be more important
than the opportunity finally to marshal the evidence for each side before

submission of the case to judgment.” Jd. at 862.

at 31:00-32:10 (imiting cummetion roe one a 35: 20-36: 20 (10 — summation).
43:50-44:15 (admitting guilt).

18

“The Constitutional right of a defendant to be heard through counsel
necessarily includes his right to have his counsel make a proper argument on
the evidence and the applicable law in his favor, however simple, clear,
unimpeached, and conclusive the evidence may seem.” /d. at 860 (quoting
Yopp, 178 A.2d at 881) (emphasis added). “[T]he trial court has no discretion
to deny the accused such right.” Jd. (emphasis added).

The Herring Court took as self-evident that this “basic right of the
accused to make his defense[,|” 422 U.S. at 859, and in particular, to argue
reasonable doubt to the jury, was central to a fair trial. “[FJor the defense,
closing argument is the last clear chance to persuade the trier of fact that there
may be reasonable doubt of the defendant's guilt.” Jd. at 862 (citing Winship,
397 U.S. 358).

Herring concluded that no right was more central to partisan advocacy,
the “very premise of our adversary system|,|” than the right to present proper
argument to the factfinder. Jd. at 860, 862. The right to argument dated back
to the Sixteenth Century “when notions of compulsory process, confrontation,
and counsel were in their infancy|.]” Jd. at 860. “Whatever other procedural
protections may have been lacking, there was no absence of debate on legal and

factual issues raised in a criminal case.” Jd.

19

The twenty-six state court cases Herring cited as “universally”
recognizing “the right to make a closing summation to the jury|,]” id. at 858,
n.8, reflect the breadth of the right. These cases consistently held that
depriving the defendant a legitimate argument—even where some argument
is permitted—violates the fundamental right to make a closing argument in
summation. In fact, only four of the twenty-six cases cited by Herring involved
the complete preclusion of summation. See id.‘

Several of the cases cited by Herring concerned the complete preclusion
of a legitimate defense theory in summation and held that completely barring
a legitimate defense theory is reversible error because denying the right to

present a proper defense theory is tantamount to denying the right to present

any argument at all.° These cases, like Herring, recognized that the trial court

4 Hall v. State, 160 So. 511 (Fla. 1935); Porter v. State, 65 S.E. 814 (Ga. Ct. App.
1909); Stewart v. Commonwealth, 11 A. 370 (Pa. 1887); Word v. Commonwealth, 30
Va. 743 (1827).

5 State v. Shedoudy, 118 P.2d 280, 285 (N.M. 1941) (conviction vacated because trial
court barred reasonable doubt argument); State v. Verry, 13 P. 838, 840 (Kan. 1887)
(trial court improperly limited defense from presenting a legitimate argument to the
jury in violation of the defendant’s right to “make a full defense” a “substantial and
constitutional right, which cannot be taken away.”); Lynch v. State, 9 Ind. 541, 1857
WL 3659, *1 (1857) (reversing summation limitation, noting “if it would be error to
prohibit counsel to argue a case at all, it was error in the Court below to refuse to
permit counsel to argue the legal branch of the case”).

20

retained discretion to curtail argument but no discretion to preclude a proper
defense theory. See, e.g., Verry, 13 P. at 840.

A majority of the cases Herring cited involved time limits on summation
and held that courts may regulate summation but cannot deny counsel a
“reasonable opportunity to make defense for their clients.” Yeldell, 14 So. at

572.6

6 State v. Ballenger, 24 S.E.2d 175 (S.C. 1943) (one-hour limit infringed on the
constitutional right “to be fully heard in his defence [sic] by himself or by his counsel
or by both” in a complex case) (citation omitted); People v. McMullen, 133 N.E. 328
(Ill. 1921) (thirty-five-minute time limit violated the right to “a reasonable
opportunity to discuss before the jury both the facts and the law of the case... . Any
limitation of the constitutional right which deprives a defendant of an opportunity to
have his counsel argue the law and the facts has always been regarded as error
requiring a new trial.”); State v. Mayo, 85 P. 251, 254 (Wash. 1906) (ninety-minute
limit reversed because in this complex capital case the limitation “was too restrictive
to allow a full and fair discussion of the facts of the case; and hence was a violation of
the defendant's constitutional rights.”); State v. Rogoway, 78 P. 987 (Or. 1904),
rehearing, 81 P. 234 (1905) (reversing a one-hour limit because it was “too restrictive
to permit full and fair discussion of the case” and because the Oregon constitution,
like the Sixth Amendment to the U.S. Constitution means “that the accused shall
have the right to be fully and fairly heard, or else it means nothing.”); State v. Tighe,
71 P. 3 (Mont. 1903); Yeldell v. State, 14 So. 570, 572 (Ala. 1894) (noting that judges
must be careful “to allow full and fair opportunity to counsel to present his client’s
defense.”); People v. Green, 34 P. 231 (Cal. 1893) (one-hour time limit reversed
because “it was impossible, fully and properly, to argue the case to the jury for the
defendant within one hour” and “a defendant being tried on a charge of felony has a
constitutional right to be fully heard in his defense by counsel, which it is not within
the discretionary power of the court to deny or abridge”); Wingo v. State, 62 Miss. 311,
1884 WL 3462, *3 (1884) (reversed one-hour summation limit because it abridged the
defendant’s “right to the time necessary for making his defense fully and fairly”);
State v. Hoyt, 47 Conn. 518, 1880 WL 2281, *13 (1880) (affirming four-hour time limit
because “there is no claim . . . that the time so allowed was insufficient for the
purposes of a full, fair and complete defense.”); Williams v. State, 60 Ga. 367, 1878

21

Like the cases it cited, Herring also recognized that courts may place
limitations on a closing argument, such as by requiring that it “not stray
unduly from the mark, or otherwise impede the fair and orderly conduct of the
trial.” 422 U.S. at 862. But nothing in Herring suggests that a trial judge may
foreclose a legitimate legal argument. Rather, even in a case that appears “to
be simple — open and shut — at the close of the evidence,” “there is no certain
way for a trial judge to identify accurately” whether “closing argument may
correct a premature misjudgment and avoid an otherwise erroneous verdict”
“until the judge has heard the closing summation of counsel.” Jd. at 863.

2. The State essentially argues that law is “clearly established” under
28 U.S.C. § 2254(d)(1) only in contexts factually identical to this Court’s cases.
This argument conflicts with how the Court determines clearly established
federal law.

This Court has instructed that “clearly established Federal law” for

WL 2652 (1878); Weaver v. State, 24 Ohio St. 584 (1874) (reversing five-hour time
limit noting “To allow insufficient time for argument is, practically and in principle,
equivalent to a denial of the right to argue the cause. To the full extent that the cause
was not argued for the want of time, the defendant was deprived of his defense, and
stands convicted without the aid of counsel.”) (citations omitted); State v. Page, 21
Mo. 257, 1855 WL 5300, *1 (1855) (affirming fifteen-minute limit in a simple case,
but noting “There are cases in which the time necessary to a proper and fair
elucidation of the matters involved in the prosecution, must be greater then and
others.”).

22

purposes of 28 U.S.C. § 2254(d)(1) “does not ‘require state and federal courts to
wait for some nearly identical factual pattern before a legal rule must be
applied.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (quoting Carey v.
Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment)).
Rather, “Section 2254(d)(1) permits a federal court to grant habeas relief based
on the application of a governing legal principle to a set of facts different from
those of the case in which the principle was announced.” Lockyer v. Andrade,
538 U.S. 63, 76 (2003).

As this Court has explained, “clearly established Federal law under
§ 2254(d)(1) is the governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its decision.” Andrade, 538
U.S. at 71-72 (emphasis added). These principles guide the Section 2254(d)(1)
analysis. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 258 (2007) (“ignoring
the fundamental principles established by {the Supreme Court's] most relevant
precedents” may be contrary to or an unreasonable application of clearly
established federal law).

“Certain principles are fundamental enough that when new factual
permutations arise, the necessity to apply the earlier rule will be beyond

doubt.” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004). The right to

participate fully and fairly in the adversary system by having counsel present
proper argument is just such a fundamental right. See Herring, 422 U.S. at
858, 862 (describing the right to have counsel make a proper argument in
summation as a “basic element of the adversary fact-finding process” and
beyond compare in importance to partisan advocacy, the “very premise of our
adversary system”).

This Court has repeatedly relied on the legal principles underlying this
Court’s cases in defining clearly established law. For example, in Thaler v.
Haynes, 559 U.S. 43, 47 (2010) (per curiam) this Court described Batson v.
Kentucky, 476 U.S. 79 (1986), as requiring “a judge ruling on an objection to a
peremptory challenge to undertake a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available” instead of
Batson’s most narrow fact-bound holding—to overrule Swain v. Alabama, 380
U.S. 202 (1965), and hold that a defendant could establish a prima facie case
of discrimination in the use of a preemptory challenge. Jd. at 47 (internal
quotation marks omitted); Accord Bell v. Cone, 535 U.S. 685, 695-6 (2002) (legal
principle of United States v. Cronic, 466 U.S. 648, 659 (1984), includes its
discussion of three hypothetical denials of counsel in which prejudice would be

presumed, instead Cronic’s most limited facts: that giving a young

24

inexperienced lawyer 25 days to prepare for trial in a complex and grave case
was not per se denial of counsel); Yarborough v. Alvarado, 541 U.S. at 662
(citing as clearly established law a footnote from Berkemer v. McCarty, 468
U.S. 420, 422-3 (1984), that cited a New York State court decision finding an
objective custodial test preferable to a subjective one, instead of the most
limited holding of McCarty, that Miranda v. Arizona, 384 U.S. 436 (1966),
applied to misdemeanor offenses and that the roadside questioning of a
motorist did not constitute a custodial interrogation) (citing McCarty, 468 U.S.
at 442, n.35 (quoting People v. P., 21 N.Y.2d 1, 9-10 (1967))).

3. The State’s remaining arguments are quickly resolved. First,
Herring’s legal principle governs Mr. Frost’s case and does not require the
recognition of another implied right, as the State argues. Pet. at 15.
Consequently, the State’s reference to Kane v. Garcia Espitia, 546 U.S. 9
(2005), is misplaced. In Espitia, this Court found that the Sixth Amendment
right to self-representation does not encompass the right to adequate access to
a law library because the lead case, Faretta v. California, 422 U.S. 806 (1975),
“says nothing about any specific legal aid that the State owes a pro se criminal
defendant.” 546 U.S. at 10 (emphasis added). In contrast, Herring specifically

referred to summation as the last opportunity to convince the jury “there may

be reasonable doubt.” Herring, 422 U.S. at 862 (citing Winship, 397 U.S. 358).
And due process requires the court to hold the prosecution to its heavy burden
of proof beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-
78 (1993).

Nor did the Ninth Circuit opinion introduce a new rule “under the guise
of extensions to existing law.” White v. Woodall, 134 S.Ct. at 1706 (quoting
Alvardo, 541 U.S. at 666). The Ninth Circuit did not rely on a general principle,
but on Herring's more limited rule that it is structural error to deny the
defendant’s Sixth Amendment right to “make a proper argument on the
evidence and the applicable law in his favor.” Herring, 422 U.S. at 860.

B. The Ninth Circuit Opinion Is Consistent with this Court’s
Structural Error Case Law.

This Court has repeatedly referred to Herring error as structural error.
See Cone, 535 U.S. at 696 (including Herring among cases “where we found a
Sixth Amendment error without requiring a showing of prejudice.”); Cronic,
466 U.S. at 659, n.25 (listing Herring error as one “the Court has uniformly
found constitutional error without any showing of prejudice’).
Notwithstanding this Court’s repeated affirmations, the State argues this
Court should grant certiorari because the Ninth Circuit opinion “expands

structural error law” by finding Herring error structural. According to the

26

State, Herring never concluded that denying the defendant the right to make
a proper summation was “structural;” it only concluded it was error. Pet. at 21.
This question is not worthy of certiorari because the State is flat wrong.

1. Herring held thet denying the right to “make a proper argument
on the law and applicable law” was structural error. Herring, 422 U.S. at 860
(quoting Yopp, 178 A.2d at 881). Herring concluded that denying a legitimate
argument in summation struck at the very framework of the adversarial
system of criminal justice. Jd. at 862. Summation was a “basic element” of the
factfinding process and the most important expression of partisan advocacy,
“(t]he very premise of our adversary system of justice.” Jd. As Herring
explained, “no aspect” of the advocacy essential to that adversarial process
“could be more important than the opportunity finally to marshal the evidence
for each side before submission of the case to judgment.” Jd. at 862.

This Court has used similar language to describe structural error. See,
e.g., Rose v. Clark, 478 U.S. 570, 578 n. 6 (1986) (structural errors abort or deny
the basic trial process); Arizona v. Fulminante, 499 U.S. 279, 310 (1991)
(describing structural errors as ones that “affect|| the framework within which
the trial proceeds”). And in assessing whether an error is structural or subject

to harmless error review, this Court looks to see whether the defendant has

27

“received a full opportunity to put on evidence and make argument to support
his claim of innocence.” Clark, 478 U.S. at 579.

Herring’s conclusion that “[t]here is no way to know” whether
“appropriate arguments in summation might have affected the ultimate
judgment|,]” 422 U.S. at 864, is a hallmark of structural error. See Gonzalez-
Lopez, 548 U.S. at 149, n.4 (here, as we have done in the past, we rest our
conclusion of structural error upon the difficulty of assessing the effect of the
error.”) (citations omitted); Sullivan, 508 U.S. at 282 (defective reasonable-
doubt instruction produces “consequences that are necessarily unquantifiable
and indeterminate[.]”). And the fact that Herring vacated the conviction
without analyzing harm is also significant because, prior to Herring, this Court
had recognized that constitutional errors could be harmless. See Chapman v.
California, 386 U.S. 18 (1967). Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60 (2008)
(noting that cases decided before Chapman had no reason to address whether
constitutional error could be harmless).

Finally, the fact that the state interfered with Mr. Frost’s Sixth
Amendment right to counsel reinforces that the violation is structural. In
Strickland v. Washington, this Court noted that “[i]n certain Sixth Amendment

contexts, prejudice is presumed [including] various kinds of state interference

with counsel's assistance. . . . such circumstances involve impairments of the
Sixth Amendment right that are easy to identify and, for that reason and
because the prosecution is directly responsible, easy for the government to
prevent.” 466 U.S. 668, 692 (1984).

Herring also recognized that state interference with counsel's
“opportunity to participate fully and fairly” constitutes Sixth Amendment
structural error. The right to assistance of counsel, Herring explained, “has
been understood to mean that there can be no restrictions upon the functioning
of counsel in defending a criminal prosecution.” 422 U.S. at 857. Herring relied
on Brooks v. Tennessee, 406 U.S. 605, 612-613 (1972), and Ferguson v. Georgia,
365 U.S. 570 (1961), which respectively struck down statutes that restricted
when counsel may call her client to testify or prevented defense counsel from
conducting a direct examination of her client at trial. Like Herring, these
limitations denied the accused the “guiding hand of counsel,” Powell v.
Alabama, 287 U.S. 45, 69 (1932) (quoted in Brooks, 406 U.S. at 613; Ferguson,
365 U.S. at 594-95), and were per se reversible error.

2. The State argues that the Ninth Circuit’s application of Herring
results in a “nebulous” rule that calls into question any number of convictions

where evidence was excluded or questioning was barred. Pet. at 22-3 (citing

29

Crane v. Kentucky, 476 U.S. 683 (1986) (harmless error applied to barring
evidence of coerced confession), and Delaware v. Van Ardall, 475 U.S. 673
(1986) (harmless error to refuse to permit counsel to question regarding deal
for key witness). This argument fails because Herring is limited to summation,
and not argument at any of point of trial. 422 U.S. at 863, n.13.

Nor did the Ninth Circuit expand the law when it found that compelling
Mr. Frost to concede guilt beyond a reasonable doubt was structural error. The
State’s argument to the contrary relies exclusively on cases that apply
harmless error analysis to erroneous jury instructions based on the
assumption that the trial was fundamentally fair and a reliable vehicle for
determining guilt. Pet. at 18, n.4. (citing Neder v. United States, 527 U.S. 1, 9-
10 (1999); Yates v. Evatt, 500 U.S. 391 (1991); Carella v. California, 491 U.S.
263 (1989); Pope v. Illinois, 481 U.S. 497 (1987); Washington v. Recuenco, 548
U.S. 212 (2006)).

In contrast, and what was denied in this case, permitting defense counsel
to challenge the sufficiency of the prosecution’s evidence before the jury is a
basic protection that is indispensable to the trial’s fundamental fairness and
reliability. See, e.g., Clark, 478 U.S. at 578 (“Harmless-error analysis thus

presupposes a trial, at which the defendant, represented by counsel, may

present evidence and argument before an impartial judge and jury.”)
(emphasis added); Neder, 527 U.S. at 8-9 (structural errors “deprive
defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or innocence . . . and
no criminal punishment may be regarded as fundamentally fair.”) (quoting
Clark, at 577-78). Denying this right lowered the prosecution’s burden of proof,
Frost I, 161 P.3d at 368, and rendered the trial fundamentally unfair.

The error, here, did not concern a single missing element from a jury
instruction or an erroneous permissive inference. Rather, Mr. Frost’s counsel
was ordered to concede guilt on each and every element of the offenses. See
Herrera v. Collins, 506 U.S. 390, 398 (1993) (noting the defendant's due process
right to insist that guilt be proven beyond a reasonable doubt) (citing Winship,
397 U.S. 358). “[E]ven when no theory of defense is available, if the decision to
stand trial has been made, counsel must hold the prosecution to its heavy
burden of proof beyond reasonable doubt.” Cronic, 466 U.S. at 657.

C. The Ninth Circuit Opinion Does Not Conflict with a

Federal Due Process Case or State Affirmative Defense
Law.
The State claims the Ninth Circuit decision here “essentially held” that

due process prohibits ever requiring the defendant to choose between

31

reasonable doubt and an affirmative defense, even when state law requires it.
Pet. at 19. This holding, the State argues, conflicts with dictum from United
States v. Russell, 411 U.S. 423 (1973), that an entrapment defense is not of a
constitutional dimension, id. at 433, and the law in several states requiring
defendants to admit an offense before claiming an entrapment defense, see Pet.
at 17 (citing cases), as well as a circuit court decision upholding one such law
against a due process challenge. See Eaglin v. Welborn, 57 F.3d 496 (7th Cir.
1995) (en banc). This argument is unworthy of certiorari because the Ninth
Circuit’s en banc decision contains no such holding.

The Washington Supreme Court concluded that the trial court’s error,
not state affirmative defense law, cost Mr. Frost his right to challenge the
sufficiency of the evidence in summation and lowered the prosecution’s burden
of proof. Frost J, 757 F.3d at 368 (citing Winship, 397 U.S. at 364). Washington
law entitled Mr. Frost to argue that he acted under duress and the prosecution
failed to prove that he participated in his accomplices’ criminal acts “with
adequate knowledge of promotion or facilitation.” Frost I, 161 P.3d at 368. This
decision bound the Ninth Circuit. See Bradshaw v. Rickey, 546 U.S. 74, 76
(2005) (“a state court’s interpretation of state law, including one announced on

direct appeal, binds a federal court sitting in habeas corpus”).

32

For this reason, the State’s reliance on Eaglin v. Welborn, 57 F.3d 496
(7th Cir. 1995) (en banc), is misplaced. Eaglin concerned a due process
challenge to an Illinois common law rule that barred the defendant from
pleading entrapment without admitting the actus reus (but not the mens rea)
of the offense. Id. at 498. The Seventh Circuit concluded the rule did not violate
due process because entrapment was not a federally-guaranteed defense,
leaving Illinois “free within extremely broad limits to decide upon the elements
of a crime.” Id. at 500. The court cautioned, however, that once a state defines
the elements of an offense, “it may not convict without proof beyond a
reasonable doubt that every element was present[.]” /d. (citing Winship, 397
U.S. at 364.) See also Patterson v. New York, 432 U.S. 197, 211, n.11 (1977)
(‘The applicability of the reasonable-doubt standard, however, has always
been dependent on how a State defines the offense that is charged in any given
case.”).

In this case, the prosecution was required to prove every element of
accessorial liability beyond a reasonable doubt. Kaglin, 57 F.3d at 500 (citing
Winship, 397 U.S. at 364). “By preventing defense counsel from arguing
reasonable doubt in closing, the trial judge ‘lessened the state’s burden to some

degree’ and ‘infringed upon Frost’s due process rights.” Frost IJ, 757 F.3d at

33

914 (quoting Frost I, 161 P.3d at 368). Precluding Mr. Frost from challenging
the prosecution’s proof beyond a reasonable doubt, while leaving the
prosecution free to present whatever arguments it wanted, was a far more
egregious affront to the adversary system of criminal justice than Herring's
equal denial of summation to both parties because it struck at the presumption
of innocence. Frost IT, 757 F.3d at 916.

Given the lack of conflict with this Court’s opinions, and absence of a
circuit split or conflict with any state court of last resort, the petition is simply
a request for this Court to correct what the State perceives to be an erroneous
decision. This Court should deny certiorari not only because this Court is not
primarily a court of error correction, see S. Ct. Rule 10, but also because the
Ninth Circuit’s decision was correct.

The State’s argument that Herring means nothing more than that the
accused has a right to say something in summation betrays Herring’s true and
stated purpose: to vindicate the defendant’s Sixth Amendment right to
participate “fully and fairly” in the adversary proceeding. 422 U.S. at 858. A
ten-second summation’ and the complete preclusion of a proper defense theory

in summation simply cannot be squared with Herring’s recognition of the “right

7 See page 18, footnote 3, supra.

34

to present proper argument on the evidence and law in his favor.” 422 U.S. at
859 (quoting Yopp, 178 A.2d at 881).
CONCLUSION
For these reasons, this Court should deny the petition for certiorari.

Respectfully submitted,

ERIK B. LEVIN

Counsel of Record
LISSA W. SHOOK
Law Office of Erik B. Levin
2001 Stuart Street
Berkeley, California 94703
(510) 978-4778
erik@erikblevin.com

September 29, 2014

35

APPENDIX
Description Page
Excerpt of Verbatim Report of Proceedings
December 11, 2003 (prosecution rebuttal summation)

State of Washington v. Joshua Frost,
Superior Court Cause No. 03-1-01034-7KNT..............cccccseeeeceeceeeneneeeeeeres 2a

la

UPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

Plaintiff,

NO. 03-1-01034-7KNT
COA NO. 53767-9-L

ORIGINAL

)
)
)
)
)
)
)
)
)

VERBATIM REPORT OF PROCEEDINGS

BEFORE THE HONORABLE CATHERINE SHAFFER, JUDGE
KING COUNTY SUPERIOR COURT
KENT, WASHINGTON
DECEMBER 11, 2003

APPEARANCES :

FOR THE PLAINTIFF: ZACH WAGNILD
DEPUTY PROSECUTING ATTORNEY

FOR THE DEFENDANT:

OFFICIAL COURT REPORTER

VICTORIA RACCAGNO ENT,

2a

assault. He had nothing to do with assaulting anyone
and as to Kurt Sears nobody assaulted him. I hope
those will be the verdicts you reach. And you will
have to struggle with it, I know, because it is a
painful case. But the particular focus I believe is
the special verdicts, not armed with a firearm.
Joshua Frost asks you -- it asks you was Joshua Frost
armed with a firearm. The answer should be no on all
of those. Thanks.

THE COURT: Thank you very much, Mr. Stimmel.
Ladies and gentlemen, once again the state has the
opportunity to address you on rebuttal. Please give
your attention to Mr. Wagnild on behalf of the state.

MR. WAGNILD: Thank you very much, your Honor.

Ladies and gentlemen, noticeably absent from Mr.
Stimmel's closing argument is reference to the law.
There is a reason for that. Because if Mr. Stimmel
had pointed you to the law and pointed to the elements
of the offenses and he pointed to the firearm
instruction and made his argument you would realize
that his argument is phoney, his arguments don't match
up with what the law is and that is really what we are
here for,

He starts out by saying, well, we will throw you a

bone, we will give you the Gapp robberies. Why? They

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3a

24

25

are just so bad that you would have a hard time
finding him not guilty. For the life of me I don't
understand that argument. You don't find someone
guilty because the crime is so bad that you just have
to punish someone. I am not asking you to do that. I
am asking you to find Mr. Frost guilty because he took
part in this robbery because he was an accomplice to
this robbery, that is why he is guilty, not because

Mr. and Mrs. Gapp are elderly, not because Mr. Gapp’s

rib was broken, not because Mrs. Gapp was hit in the

face. You will find him guilty because he was
involved.

And somehow, somehow Mr. Stimmel then tries to
separate out the Gapp robbery from the rest of them.
But there is no difference here. I mean, sure, he
went in during the Gapp robbery, but the rest of them
he was simply the driver. He was involved. His role
changed. Whereas Mr. Williams and Alexander Shelton’s
roles stay the same and Mr. Frost's role changed, that
doesn’t make him any less guilty. He is no different.
And then he asks you not to find him guilty of the
burglary charge? Why? Not for any legal reason.

Just because, you know, it is not really what the
intent was.

Look at the jury instructions. Just look at the

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4a

elements of burglary in the first degree. Of course
that was their intent. They unlawfully entered. They
assaulted somebody. They unlawfully entered the house
with an intent to commit a crime. That is what I need
to prove. He raises the issue of whether or not I am
trying to say that Mr. Frost was in the 7/Eleven store
and the Ronnie's Market store. Quite frankly, I just
don't know. We just can't tell. There is an
interesting argument to be made there. First of all,
we know that Alexander Shelton wears glasses, and when
you look either at the video or you look at the
pictures, say from the 7/Eleven robbery, it is
difficult to see any glasses. They are not the
clearest pictures but it is difficult to see glasses
on the subject on the one that is not the
African-American male.

We also know that Mr. Frost does an exceptional
job of trying to minimize his involvement. So it
would be quite likely that he would say he drove in
all of them and, in fact, he was involved. We also
know that Eddy Shaw, who knows these individuals,
looked at him and immediately recognized this to be
someone who looks just like Mr. Frost. Was it
Mr. Frost who entered the stores? I just don’t know.

It could be. Might not be. But it doesn’t really

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matter for the purposes of finding him guilty, because
even if it wasn't him who went into the stores, we
know it was him that drove them and then drove away.
So we know he was an accomplice, we just don't know if
he was the person that went inside.

And, finally, I want to talk about firearms
enhancement, these special verdict forms, because Mr.
Stimmel dedicated a lot of his closing to that. He
says at one point that he is trying -~ they want to
divorce themselves from the guns. Well, I have got
news for the defense, it is too late for that. If
Mr. Frost wanted to divorce himself from the guns you
don't do it at trial. You do it when your accomplices
are pulling out loaded firearms and heading into
stores to rob them, that is when you divorce yourself
from guns. It is too late. Mr. Frost is already
bound to those guns. He tells you that he wants you
to exonerate his client on the firearm enhancement and
yet not once does he say, hey, why don't you look at
instruction number 34. If you look at instruction 34
at the very bottom it says if one participates in a
crime armed with a firearm all accomplices to that who
participated in the crime charged are deemed to be so
armed even if only one firearm is involved. As long

as Mr. Frost is an accomplice to these robberies and

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as long as one other participant is armed with a
firearm, he is, too. That is what the law is. All I
am asking you to do is follow the law.

Mr. Stimmel has simply pointed you to one reason
why you shouldn’t just simply follow the law on that.
The answer is you should. That is what we are here
for.

We talked about this in jury selection. Some of
it you may not be sure you completely agree with it,
but the fact is what we are here to do is look at the
facts and apply it to the law. The law is clear, if
one participant was involved with carrying a firearm,
they all are.

Ladies and gentlemen, I am not asking you to find
Mr. Frost guilty because these were violent crimes, I
am not asking to you find him guilty because the Gapps
are old, I am not asking you to find him guilty
because someone was shot. I am asking you to find Mr.
Frost guilty because he is guilty, because he was an
accomplice to every one of the crimes charged. Thank
you very much.

THE COURT: Thank you very much, Mr. Wagnild. All

_ right, ladies and gentlemen. We have got a little

more business with you this point, and our first order

of business with you since you have all patiently

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0335%3A3. Public record. Not legal advice.