Opposition Brief — Kernan v. Weston

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- AUG 10 1995

NO. 95-69

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PEG KERNAN, WARDEN,

Petitioner,

Vv.

THEODORE ANTHONY WESTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Respondent Theodore Anthony Weston, through counsel,

and pursuant to Rule 39, Rules of the Supreme Court of the

United States, hereby requests leave to proceed in forma

pauperis in the above-captioned matter. Contemporaneous

with the filing of this motion, Mr. Weston is seeking to

file the accompanying Brief in Opposition.

Mr. Weston proceeded in forma pauperis in both the

district court and Ninth Circuit. Undersigned counsel was

appointed pursuant to the Criminal Justice Act in both

courts. Undersigned counsel’s application for admission to

REQUEST FOR LEAVE TO PROCEED IN FORMA PAUPERIS -1- H

bere

the Bar of this Court was submitted several days ago.

Dated: August 8, 1995.

Respectfully submitted,

*. Gy,

eg Eran /

> {eee

Bruce Eric Cohen

Attorney for Respondent

THEODORE ANTHONY WESTON

REQUEST FOR LEAVE TO PROCEED IN FORMA PAUPERIS -2-

: ORIGINAL

NO. 95-69

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PEG KERNAN, WARDEN,

Petitioner,

Vv.

THEODORE ANTHONY WESTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OPPOSITIO

BRUCE ERIC COHEN

Attorney at Law

1442-A Walnut Street

Berkeley, CA 94709

Tele: (510) 273-9902

Attorney for Respondent

THEODORE ANTHONY WESTON

UESTIO

1. Was the Ninth Circuit required to address the state’s

[petitioner’s] presumption of correctness claim when the

first time the claim was made by the state in this case was

in a footnote of the reply brief it filed in the Ninth

Circuit?

2. Is whether a defendant consented to a mistrial a mixed

question of fact and law just like other questions of

waiver, since the principal consideration is not a simple

historical fact but whether the defendant was allowed to

retain primary control over the course of the proceedings?

3. Even if consent to a mistrial is potentially governed by

28 U.S.C. 2254(d), is a state appellate court’s finding of

consent entitled to a presumption of correctness when the

state court refused defendant’s invitation to apply the

special federal constitutional principles defining when

consent to a mistrial may be inferred (and cited no federal

cases in its opinion)?

4. Assuming section 2254(d) is applicable, is a finding

that the defendant consented to a mistrial fairly supported

by the record when, after the prosecution improperly

introduced prejudicial evidence in rebuttal, the defense

filed a motion that made clear that if the court was not

going to dismiss the case with prejudice the defendant

wanted limiting instructions and not a mistrial, and then,

when the court declared a mistrial without prejudice,

defense counsel objected vociferously, only to be told to

"sit down and be quiet"?

5. Did the district court and Ninth Circuit correctly find

that no manifest necessity existed for aborting the first

trial here, where the prosecution caused the problem, the

defendant wanted to proceed with the trial, curative

instructions would have mitigated the prejudice, and the

trial court did not act to protect the defendant’s

interests?

Pl IN

Page

QUESTIONS PRESENTED ....--ccccccccccececcescessscesssece i

TABLE OF AUTHORITIES ......cccceeees eececcccocscccoese iii

STATEMENT OF THE CASE ......--. COR CE ESOC OES HEROS EO CEASED 1

A. Procedural HiStoOry ......ccccccccccccccccccccces 1

B. Facts Pertaining To The Mistrial Declaration

That Ended The First Trial .......... eeeneceses 3

SUMMARY OF ARGUMENT .......-22-eeee-. ecccccoccccccscccccesce 10

REASONS FOR DENYING THE WRIT ......------ cocccccecccece 12

I. THE STATE DID NOT TIMELY ASK EITHER THE

NINTH CIRCUIT OR THE DISTRICT COURT TO

ACCORD A SECTION 2254(d) PRESUMPTION OF

CORRECTNESS TO THE STATE COURT FINDING

ON CONSENT; EVEN IF THE STATE HAD MADE

SUCH A TIMELY REQUEST, NEITHER COURT

WOULD OR SHOULD HAVE DEEMED THE

PRESUMPTION TO APPLY ...-.--ceeecececes eeeedece 12

II. THE CONCLUSION OF THE DISTRICT COURT AND

NINTH CIRCUIT THAT MANIFEST NECESSITY DID

NOT JUSTIFY THE MISTRIAL HERE WAS CONSISTENT

WITH -- INDEED WAS DICTATED BY -- THIS COURT’S

HOLDINGS .....---- eccccccccecs ecccccccccccccs 27

CONCLUSION ......- coccecce eocccces Trrrrrrrrerr eee ee 35

ERs

ag Ok”

TABL F_ AUTH T

Page

Cases:

Arizona v. Washington,

434 U.S. 497 (1978) ccccccccccsecse oeeees 12-13, 17, 27°29

Bland v. California Department of Corrections,

20 F.3d 1469 (Sth Cir.i994) .ccessces covcesesoceessacss &F

Braxton v. U.S., 395 A.2@ 759 (D.C.App.1978) ....s2. 25, 28

Brewer v. Williams, 430 U.S. 387 (1977) wcccccccceess owe EP

Burden v. Zant, 498 U.S. 433 (1991) ccccccncscccccce a3, ae

Compton v. Superior Court, 6 Cal.3d 55 (1971) ........+. 25

Cuyler v. Sullivan, 446 U.S. 335 (1980) ........ ssenweae BF

Glover v. McMackin,

950 F.2d 1236 (6th Cir.1991) ....... ttewnanes 18, 22, 25

Greer v. Milier, 483 U.S. 756 (1907) «sanectcaseonsatdsnes 30

Hutson v. Superior Court, 203 Cal.App.2d 687 (1962) .... 24

In re Murchison, 349 U.S. 133 (1955) «e««seces Anes nes ~ a2

Int’l Union of Bricklayers v. Martin Jaska, Inc.,

732 F.2G 1461 (OCR CLE. 1008) scccns cc deckaseaekera . 14-15

Lafferty v. Cook,

949 F.2d 1546 (10th Cir.1991), cert. denied, 112 S.Ct.

1942 (i992) «ccccceus WETTTTOCCCOIULICT CT TT eccceee LY

Lee v. U.S., 432 U.S. 23 (1977) cccccscscccccccsccecees 7s om

Lovinger v. Circuit Court,

S45 F.2G 739 (7H Cir. 2988) cccaeveessndnneces « 42, 24, 28

Norris v. Risley, 878 F.2d 1178 (9th Cir.1989) ......... 19

Oregon v. Kennedy, 456 U.S. 667 (1982) ..cccceeee 7, 13, 23

Parker v. Dugger, 498 U.S. 308 (1991) ......... stecscess OO

People v. Benton, 260 N.W.2d 77 (Mich.1977) ...-cseeeeee 29

People v. Catten, 508 N.E.2d 920 (N.Y.1987) ...

People v. Chaney, 202 Cal.App.3d 1109 (1988) .........2.. 25

People v. Davis, 10 Cal.4th 463 (1995) ...ccceees chine oe

iii

Page

- Cont’d.:

People v. Frank, 51 Cal.3d 718 (1990) .......... vesesee JG

People v. Fries, 24 Cal.3d 222 (1979) ........-. errr er rs 31

People v. Harris, 22 Cal.App.4th 1575 (1994) ........... 31

People v. Keenan, 46 Cal.3d 478 (1988) ....eeeeeeeeeeees 30

People v. Squires, 300 N.W.2d 366 (Mich.App.1981) ...... 26

People v. Wash, 6 Cal.4th 215 (1993) w.cccceececcenecees 30

Richardson v. Marsh, 481 U.S. 200 (1987) ............ ese 20

Rogers v. Richmond, 365 U.S. 534 (1961) .........4.- 37, 249

Romano v. Oklahoma, __U.S. __, 114 S.Ct. 2004 (1994) ... 30

Schneckloth v. Bustamonte, 412 U.S. 218 (1972) ......... 18

Schire v. Farley, .. U.S. —., 134 S.Ct. 7863 (1994) ..... 18

State v. Flick, 495 A.28 339 (MG.1905) .cccccccccesecess 25

Townsend ¥. Sain, 372 Us«B. 293 (1963) seccsccecccvese see 26

U.S. ex rel Ross v. Franzen,

GEG F.20 933 (FER CAP. ISSR). cccccvcvevess Coecccocceces 16

U.S. vw. Bates, 917 F.24 388 (9th Cixr.1990) .ccaccee e 13, 24

U.S. vv. Barton, B25 Fasd 17 (and CiF.i97S) cccvcccescee e's 32

U.S. VW. Dimits, 424 U.S. GOO (2976) ceccccececes « B€*k94 37

U.S. v. Hoelker, 765 F.24 1422 (9th Cir.1985) w.cccccoee 30

U.S. v. Jorn, 400 U.S. 470 (1971) .ccccceeee Ad, €44¢. @7,% 32

U.S. v. Klein, 582 F.2d 186 (2nd Cir.1978) ..cccccccecee 29

U.S. v. Sanchez, 722 F.2d 1501 (1ith Cir.1984) .....«e.«.. 30

U.S. v. Sanders, 591 F.2d 1293 (9th Cir.1979) .w.cccceee- 29

Watkins v. Sowders, 449 U.S. 341 (1981) .cccccccccccceee 30

Weston v. Kernan,

50 F.3d 633 (9th Cir.1995) ... 2, 13, 15, 17, 19, 21, 27-

$3, 32

TABLE OF AUTHORIT = t’d.

Page

Cases - Cont’d.:

Withrow v. Williams, u.3. .... 113 3.6t. 1748 (1993) . 39

Constitutional and Statutory Authorities:

United States Constitution:

Fifth Amendment

(Double Jeopardy Clause) ........ 2, Fe 12°13, 22, 26, 34

Title 28 -— United States Code:

Section 22546) «<+ssscou6e oun eeen eee tee eae en 10, 14-20

Section 2294(G}(8) .caccnandbusbasews sdedececnes xnbdaces’s 20

Federal Rules of Appellate Procedure:

Rule 41(D) ccccccccccccsccccccccccccenesscessesesessscsese 3

NO. 95-69

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PEG KERNAN, WARDEN,

Petitioner,

Vv.

THEODORE ANTHONY WESTON,

Respondent.

I IN OP TION

Respondent Theodore Anthony Weston respectfully

requests that the petition for writ of certiorari be denied.

STATEMENT OF THE CASE

A. Procedural History

Mr. Weston was charged with kidnapping Audrey Erickson,

robbing her, and forcing her to engage in three acts of oral

copulation. (CT 1-4.) The first trial ended when the trial

judge declared a mistrial -- over Mr. Weston’s objection --

after the prosecutor elicited prejudicial testimony from two

rebuttal witnesses. (RT 416, 425-441.) The second-trial

jury convicted Mr. Weston of one act of oral copulation but

was sharply and irreconcilably divided on the kidnapping,

robbery, and other copulation charges, all of which were

dismissed. (RT 1077-79.)

Mr. Weston’s appeal to the California Court of Appeal

was unsuccessful, and the California Supreme Court denied

review (Pet., Appendices D and C), but the United States

District Court for the Northern District of California (Hon.

Marilyn Patel) granted Mr. Weston’s habeas corpus petition.

The court did so on two independent grounds, holding: 1)

forcing Mr. Weston to stand trial a second time violated the

Double Jeopardy Clause where the trial court had discharged

the first-trial jury without either Mr. Weston’s consent or

manifest necessity; and 2) Mr. Weston was deprived of a fair

trial at the second trial by extremely intemperate remarks

made by the trial court in the presence of the jury (e.g.,

twice calling defense counsel a liar {when the

misunderstanding at issue was attributable entirely to the

court}, and agreeing with the prosecutor’s totally

unwarranted insinuation in closing argument that defense

counsel was dishonest and unethical). (App. B.)

The Ninth Circuit affirmed the granting of the habeas

petition. The majority agreed that the first-trial mistrial

was declared without either Mr. Weston’s consent or manifest

necessity. The majority did not reach the alternative

ground (fair-trial violation) on which the petition had been

granted. (App. A; Weston v. Kernan, 50 F.3d 633 (9th

Cir.1995).)

Throughout the foregoing appeal and habeas process, Mr.

Weston was in prison, serving the l1l-year sentence imposed

on him in this case. He was released from custody on May 1,

1995, as a result of the affirmance by the Ninth Circuit.1}

Given the "good-time, work-time" credits earned by Mr.

Weston, however, the state would have released him on May

21, 1995, even if his federal claims had been rejected.

B. Facts Pertaining to the Mistrial Declaration

hat fod the Firat. Trial

In the first trial, when it came time for the

prosecution to put on rebuttal evidence, an acquittal was a

distinct possibility.

Audrey Erickson testified that Mr. Weston forced his

way into her van outside a nightclub in San Francisco

(Sergio’s), then drove to a field where he robbed and

sexually assaulted her. (RT 90-108.) The reliability of

her testimony was attacked, however , 2 and the record clearly

1. The state did not exercise its option to request that

the Ninth Circuit stay its mandate while the petiticn for

certiorari was pending. (See Rule 41(b), Fed. R. App.

Proc. )

2. There were inconsistencies, for example, in Ms.

Erickson’s statements regarding the circumstances under

which she and Mr. Weston met (compare RT 64-65 with 313),

how he allegedly got in the van (compare RT 87-90 with 315),

what he allegedly did to her (compare RT 106, 108, 177-86,

with 317-18, 388-93), and whether she called the police when

she got home (compare RT 194-96 with 325-31, 359-64).

Ms. Erickson’s corroborating witnesses, moreover, were

Robert Vieira and Sam Sylvester. Whereas Erickson and

Vieira claimed to be non-romantically involved friends who

rarely frequented Sergio’s together (RT 60, 147-49), the

bartender later testified that Erickson and Vieira would

come into the bar together four to five times a week (RT

588-589) and were physically affectionate on the night of

the alleged incident (RT 591, 610). In addition, whereas

Erickson and Sylvester indicated they were barely friends

who spoke on the phone once a month (RT 243, 253), it later

emerged they had been having an extramarital affair and were

planning to marry (RT 812-13, 820-21, 857-60).

indicates that at least the second-trial jury did not find

her story credible.?

Mr. Weston stunned the prosecution, moreover, by

calling to the stand an entirely neutral witness -- Donald

Montgomery. Mr. Montgomery -- an electronics technician at

Sears (RT 334, 554) who had never seen either Mr. Weston or

Ms. Erickson before (RT 335, 352) -- thoroughly impeached

Ms. Erickson. Mr. Montgomery, on leaving Sergio’s, observed

the public events that culminated in Mr. Weston and Ms.

Erickson leaving the area together. Contrary to Ms.

Erickson’s claims, Mr. Montgomery testified that Ms.

Erickson was very intoxicated, was flattered by Mr. Weston’s

attentions, allowed him to kiss her several times, and

ultimately chose to send her original date home so she could

be with Mr. Weston. Furthermore, Montgomery said, Ms.

Erickson gave Mr. Weston the keys to her van. Montgomery

stayed with them for a few minutes, he said, until he could

see "they were getting along fine" and he "felt like [he]

was somewhat in the way." (RT 338-43.)

In addition, Mr. Weston presented the testimony of two

women who were in the apartment that Mr. Weston brought Ms.

Erickson back to. They confirmed that Ms. Erickson happily

3. The verdict rendered in the second trial makes this

clear. Thus, whereas Ms. Erickson testified that Mr. Weston

kidnapped her, robbed her, and forced her to submit to three

sexual acts, the jury did not find the kidnapping charge to

be true, did not find the robbery charge to be true, and

returned a guilty verdict on only one of the three sexual

offenses charged. (CT 352, 361, 403-06; RT 1077-79.)

disappeared into Mr. Weston’s bedroom, where, the

indications were, the pair engaged in consensual sex. The

witnesses also testified that, after the pair emerged from

the bedroom, Ms. Erickson give Mr. Weston money (apparently

for drugs), then waited for him to return. When he did not

return she became angry and left, believing respondent and

the women had conspired to take her money. (RT 265-70,

376.)4

In light of the strong defense presented, when the

prosecutor announced his rebuttal witnesses (two police

officers and Mr. Weston’s parole officer) Mr. Weston’s trial

counsel objected, fearing that the prosecutor, ina

desperate effort to avoid an acquittal, would use the

witnesses as a pretext for eliciting inadmissible evidence.

The trial judge agreed that one of the proposed witnesses

could not be called but contemptuously rejected counsel’s

objections to the other two witnesses. (RT 401-404.) The

prosecutor then proceeded to elicit testimony from both

witnesses that the trial court itself later acknowledged was

prejudicial and plainly inadmissible. (RT 416, 421-423.)°

4. Mr. Weston’s defense was that Ms. Erickson willingly

accompanied him to the apartment where he was staying and

willingly had sex with him. Because he absconded with her

money, however, and because her late evening with him

undoubtedly created great difficulties for her with at least

one if not two of her lovers, she had great incentive to

make up the story she told the jury. (See RT 1042-47.)

5. From the first witness, the prosecutor elicited that Mr.

Weston had once been arrested for check fraud. ["The

Prosecutor: ‘Did you place Mr. Weston under arrest?’

(fn. continued on p. 6)

ee ee ee ee er ee re ee, ee

—-

When the first inadmissible testimony was elicited, the

trial judge’s immediate response was that the prosecutor had

deliberately "transgress[ed] this court’s order" to confine

the witness’ testimony to "one [legitimate and narrow]

purpose and one purpose alone...." Defense counsel moved

for a mistrial. This was in the presence of the jury,

however, and counsel did not elaborate on the nature of the

mistrial he was seeking. The motion was taken under

submission. (RT 416.)

Immediately after prejudicial testimony was elicited

from the second witness, however, defense counsel moved the

court -- out of the presence of the jury -- to declare a

mistrial sua sponte, i.e., with prejudice, on the ground

that the prosecutor had deliberately injected error into the

trial. (RT 425, 426.)

This angered the trial judge, who insisted

(incorrectly) that there was no legal basis for such a

motion. (RT 426.) Believing trial counsel was trying to

"trick" him into granting a mistrial that would preclude

retrial, the judge asserted (quite inaccurately and contrary

to his reaction moments before) that the testimony regarding

Mr. Weston’s arrest for check fraud had been "blurted out"

and was not elicited by the prosecutor. (RT 416, 425, 427.)

The day’s session ended with this exchange:

Witness: ‘Yes, I did.’ The Prosecutor: ‘For what?’

Witness: ‘For ... check fraud.’"] (RT 416.)

From the second witness, the prosecutor elicited that

Mr. Weston had previously been on parole. (RT 421-23.)

6 t

Court: In forty years I never heard of it [a

mistrial with prejudice] but there is a lot of stuff

I never heard of in my lifetime. All right, anyway

you made a motion for mistrial, am I correct?

Defense counsel: Yes.

(RT 426.)

The next morning, defense counsel filed a written

motion making clear that there was authority from this Court

for his position that the intentional introduction of

inadmissible prejudicial evidence by a prosecutor can

justify a dismissal with prejudice. (CT 131, citing, inter

alia, Qregon v. Kennedy, 456 U.S. 667, 679 (1982).)®

The motion also made very clear that Mr. Weston was

only interested in a mistrial that would have precluded a

second trial on double jeopardy grounds. 7 In the event a

mistrial with prejudice was denied, the motion continued,

Mr. Weston did not seek to have the jury discharged but

6. The motion was entitled "Defense Motion for Mistrial

Based on Prosecutorial Misconduct." (CT 127-136. See RT

429.) The motion requested "that the trial court declare a

mistrial in the above matter on the grounds that the

, ‘ ea _

-"\ (CT 127; emph.

added.) The argument portion of the motion\began:

Defendant contends that the prosecutorial

misconduct described above mandates a mistrial

in this case, and the double jeopardy clause

. . t

pons pang on gp oe prc ey Peal.

(CT 130; emph. added.)

7. It might have been more accurate for counsel to use the

term "dismissal," but, as this Court held in Lee v. U.S.,

432 U.S. 23, 30 (1977), the point here "does not turn on...

[which] label" -- "’dismissal’ or a ‘declaration of

mistrial’" -- could have been placed on the relief sought.

sought only to have the jury admonished to disregard the

prejudicial evidence. (CT 127-132.) Throughout the ensuing

argument, defense counsel never abandoned this position.

(RT 434-436.)

The trial court rejected the allegation that the

prosecutor had deliberately goaded defense counsel into

making the mistrial motion. The court again accused defense

counsel of trying to trick the court and slander the

prosecutor. The court even claimed that it was defense

counsel’s fault that the prejudicial evidence had come in.

(RT 437-438.)

Nonetheless, and wholly unexpectedly, the court granted

a mistrial without prejudice (taking all of the credit for

recognizing the prejudicial impact of the evidence defense

counsel had futilely attempted to persuade the court to keep

out). (RT 438-439.)

Immediately and unequivocally, defense counsel

protested the court’s ruling, stating that, in light of the

court’s denial of Mr. Weston’s motion for dismissal with

prejudice, he needed a few minutes to confer with Mr. Weston

in order to determine whether Mr. Weston wanted to continue

with the first trial or consent to a second. (RT 439.)

The jury was not present during this colloquy and had

no idea what was transpiring. The trial judge, who could

not have helped but recognize that Mr. Weston was not i

consenting to a discharge of the jury without prejudice, had :

ample opportunity to refrain from ordering that discharge

and to permit counsel and Mr. Weston to confer. (RT 439.)

Instead, the trial judge immediately had the jury

brought into the courtroom, told defense counsel to "sit

down and be quiet" when counsel again objected to the

unilateral action the court was about to take, and

discharged the jury. (RT 439-441.)

At the second trial, the prosecutor proceeded to take

full advantage of his newly-gained opportunity to obtain a

conviction in this case.®

8. Whereas in the first trial the prosecution’s case-in-

chief consisted of the testimony of 4 witnesses and spanned

211 pages (RT 43-253), in the second trial it consisted of

the testimony of 7 witnesses and spanned 368 pages (RT 478-

845).

Two of the prosecution’s second-trial witnesses,

furthermore, Lt. Tognetti and Donald Montgomery, were

witnesses the defense had called in the first trial (RT 325,

333) and one of them -- Mr. Montgomery, was by far the best

witness the defense had. In closing argument in the second

trial, moreover, the prosecutor further exploited this theft

by arguing the jury should discount Montgomery’s testimony

because he was not testifying because "he wants to see

justice done" but only "because he got a subpoena ...." (RT

1066.)

The mistrial also provided the prosecution with the

incentive to interview Glenn Arthur, who testified in the

second trial but not in the first. (See RT 612.) Arthur’s

importance to the case can be measured by the fact that it

was his testimony, along with Montgomery’s, that the jury

wanted to rehear during its deliberations. (RT 1073-1074.)

Investigation between the two trials, furthermore, yielded

additional evidence that the prosecution had not presented

at the first trial. (RT 457, 837-839.) >

SUMMARY OF ARGUMENT

The state? raises no issue worthy of this Court’s

concern.

The state claims that the California Court of Appeal’s

finding that Mr. Weston consented to the mistrial was

entitled to a presumption of correctness under 28 U.S.C.

section 2254(d). The first time the state made the latter

claim, however, was in a footnote in its reply brief in the

Ninth Circuit. That is why there is no discussion of the

issue in either the district court’s or Ninth Circuit’s

opinion.

Even if the state had presented the claim in some

cognizable manner in the courts below, moreover, it would

and should have been rejected. First, whether a defendant

consented to a mistrial is more than a question of

historical fact. It involves more subtle considerations, as

whether the trial court allowed the defendant primary

control over whether to abort or continue with the first

trial. Like all waiver questions, consent to a mistrial is

thus a mixed question of fact and law and is not governed by

section 2254(d).

Second, even if consent to a mistrial is a finding

potentially governed by section 2254(d), the particular

finding by the California Court of Appeal does not fall

within the statute because the latter court did not even

9. Petitioner will often be referred to in this brief as

"the state."

purport to apply the federal constitutional principles that

define such consent.

Finally, the state consent finding is not entitled to a

presumption of correctness because the record plainly shows

that Mr. Weston did not consent to the declaration of a

mistrial without prejudice. This was the unqualified

conclusion of both the district court and Ninth Circuit.

The state’s second claim is that the district court and

Ninth Circuit -- in finding that no manifest necessity

justified the mistrial order -- failed to show sufficient

deference to the trial court. The state reaches that

conclusion, however, by ignoring the considerations that go

into the manifest-necessity analysis when it is the

prosecution that has improperly introduced prejudicial

evidence: e.g., whether the defendant’s interest in

retaining "primary control over the course to be followed"

was honored, whether limiting instructions would have

mitigated the harm, and whether the decision to abort was

made for the defendant’s benefit. Applying the analysis

mandated by this Court, the conclusion reached by the

district court and Ninth Circuit is the only possible one.

REASONS FOR DENYING THE WRIT

DISTRICT CO ACC

CO CTNESS TO THE STATE z

THE STATE HAD MADE SUCH A TIMELY REQUEST, NETTHER COURT

1:18) OR SHOULD DE D 9)

When, through no fault of the defendant, prejudicial

evidence is erroneously presented to the jury, the defendant

is forced to choose between two constitutional rights. On

the one hand, the Double Jeopardy Clause establishes his

right to have his guilt or innocence determined by the first

jury to hear his case. (Arizona v. Washington, 434 U.S.

497, 503 (1978).)19 at the same time, he is entitled to a

fair trial. (See generally, In re Murchison, 349 U.S. 133,

136 (1955).) The latter choice, this Court has recognized,

is a "Hobson’s choice": the defendant must choose "between

giving up his first jury and continuing with a trial tainted

by prejudicial or prosecutorial error." (U.S. v. Dini

424 U.S. 600, 609 (1976).)

Either option might appear advantageous to a defendant

in a given case.11 Except in a rare category of case,

10. The prohibition against placing a defendant "twice ...

in jeopardy" is based on the recognition that a second trial

may be “grossly unfair." It not only prolongs a defendant’s

ordeal but, by allowing "subtle changes in the State

testimony" on retrial, "may enhance the risk that an

innocent defendant may be convicted." (Arizona v.

Washington, supra, 434 U.S. at 503-504, fn. 15.)

11. Despite the admission of prejudicial evidence, a

rational defendant could choose "to conclude his

confrontation with society through the verdict of [the

first] tribunal [if] he ... believe[d it still] to be

(fn. continued on p. 13)

therefore, the Constitution does not dictate which of the

above choices is to be exercised.12 Rather,

Where prosecutorial error ... of a degree

sufficient to warrant a mistrial has occurred,

‘the important consideration, for purposes of the

Double Jeopardy Clause, is that the defendant

e e course t

Ww in t error.’

(Oregon v. Kennedy, supra, 456 U.S. at 676, quoting U.S. v.

Dinitz, supra 424 U.S. at 600, 609; emph. added.) The

defendant’s right of primary control is "[c]Jentral among the

protections afforded by the double jeopardy clause ...."

(U.S. v. Bates, 917 F.2d 388, 393 (9th Cir.1990).)

Despite the centrality of the defendant’s right of

primary control in the jurisprudence of this Court, the

state does not refer to it in its petition for certiorari.

Indeed, despite the fact that the "primary control"

principle occupied center stage in the district court’s

opinion (Pet., App. B, p. 62, 72), the Ninth Circuit’s

opinion (Pet., App. A., pp. 35-37; 50 F.3d at 637, 638), and

favorably disposed to his fate." (Arizona v. Washington,

supra, 434 U.S. at 514 quoting U.S. v. Jorn, 400 U.S. 470,

486 (1971).) Conversely, a defendant could "reasonably

conclude that a continuation of the tainted proceeding would

result in a conviction followed by a lengthy appeal and, if

a reversal is secured, by a second prosecution. In such

circumstances, a defendant’s mistrial request has objectives

not unlike the interests served by the Double Jeopardy

Clause - the avoidance of the anxiety, expense, and delay

occasioned by multiple prosecutions." (U.S. v. Dinitz,

supra, 424 U.S. at 608.)

12. The only exception is where an error is committed that

is certain to result in reversal. As observed by the Ninth

Circuit, the state has conceded that the evidence at issue

in this case does not fall into that category. (50 F.3d at

638.)

all six briefs filed by Mr. Weston in these proceedings

(state and federal), the state has never referred to it in

any of the pleadings it has filed in the case.13

The reason is self-evident: the principle was

flagrantly violated here and the state has no substantive

defense to offer.

Instead, the state attempts a procedural end run. The

state claims that what this case is really about is whether

the finding of the California Court of Appeal -- that Mr.

Weston consented to a mistrial without prejudice -- is

entitled to a presumption of correctness under 28 U.S.C.

sec. 2254(d).

The claim is not worthy of the Court’s attention.

First, the claim that the California Court of Appeal’s

holding that Mr. Weston consented to a mistrial was a

finding of fact entitled to a presumption of correctness was

not made by the state in the district court. Nor was it

made by the state in its opening brief in the Ninth Circuit.

The state did not make the claim until its reply brief in

the court below -- and even then only made it in a footnote

(Reply Br., p. 5, fn. 2) -- leaving Mr. Weston no

opportunity or incentive to brief the issue at that time.

Under these circumstances, the Ninth Circuit clearly had the

discretion to ignore the belated claim. (Int’l Union of

13. The California Court of Appeal likewise failed to refer

to the “primary control" principle in its opinion. (Pet.,

App. D, pp. 91-96.)

Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th

Cir. 1985) ["we will not ordinarily consider matters on

appeal not specifically and distinctly raised and argued in

appellant’s opening brief"]. Cf., Bland v. California

Department of Corrections, 20 F.3d 1469, 1474 (9th Cir.i994)

{in habeas proceeding, California precluded from making an

argument in Ninth Circuit that it had not previously

made]}.14 See also, Burden v. Zant, 498 U.S. 433, 437 (1991)

{implicitly accepting premise that party’s failure to seek

benefit of sec. 2254(d) in lower court would waive right to

seek application of presumption in higher court]..)

The fact that the Ninth Circuit did not address the

presumption issue in its opinion, therefore, is attributable

to the state, not the court, and in no way presents a

question that should concern this Court.

In any event, the state’s threshold substantive claim -

- that a finding of consent to a mistrial is a factual

finding within the meaning of sec. 2254(d) -- is wrong.15

14. The fact that neither the majority nor the dissent in

this case referred to the presumption is further evidence

that the state failed to raise the claim in any cognizable

fashion. (50 F.3d at 636-42.)

15. The state’s claim that, in the Ninth Circuit, Mr.

Weston conceded that a finding of consent to a mistrial is a

factual finding within the meaning of sec. 2254(d) is not

accurate. As indicated above, the state, in its opening

brief, made no claim that consent-to-a-mistrial falls within

section 2254(d). In his appellee’s brief, therefore, there

was no argument on the subject for Mr. Weston to concede to.

In one sentence of one footnote, rather, when

discussing the district court’s finding that consent to the

mistrial was not given, Mr. Weston said he "presum[ed]" the

finding should be judged under the "clearly erroneous"

(fn. continued on p. 16)

Not all findings of fact fall within sec. 2254(d).

Findings are governed by the statute only if they involve

"what are termed basic, primary, or historical facts: facts

in the sense of a recital of external events and the

credibility of their narrators.... So-called mixed

questions of fact and law, which require the application of

a legal standard to the historical-fact determinations, are

not facts in this sense." (Townsend v. Sain, 372 U.S. 293,

309, fn. 6 (1963). Whether a defendant has consented to a

mistrial is a mixed question of fact and law as defined by

this Court.

United States ex rel Ross v. Franzen, 668 F.2d 933 (7th

Cir.1982), illustrates the principle. In Ross, the Court of

Appeals recognized that what counsel had done (i.e., walk

out of a deposition) was a matter of historical fact and the

state court’s finding on that score was subject to the

presumption of correctness. The state court’s conclusion

that counsel’s conduct was "in effect ... a stipulation"

that defendant was waiving his right of confrontation,

however, "represented ... the application of legal standards

standard. (Br. of Pet./Aee., p. 13, fn. 10.) He took no

definitive position, however, and went on to argue that the

finding was correct when the record was reviewed de novo.

(Id. at 13-17.) Mr. Weston further stated (in another

footnote) that, since the consent finding of the California

Court of Appeal was "utterly without support in the record,"

de novo review of that finding would quickly show it was not

entitled to a presumption of correctness. (Id. at p. 17,

fn. 16.)

Thus, while Mr. Weston may have assumed arguendo the

potential applicability of section 2254(d), he did not

purport to (and was not called on to) address that threshold

question on the merits. He does so for the first time here.

».-. to the historical facts" and was not governed by section

2254(da). (668 F.2d at 938. See also Brewer v. Williams,

430 U.S. 387, 395-97, 402-04 (1977) ["the question of

waiver" is "not a question of historical fact" within the

meaning of section 2254(da) but "requires application of

constitutional principles to the facts as found"]; Cuyler v.

Sullivan, 446 U.S. 335, 342 (1980) [findings regarding the

roles counsel played in the defenses of the various co-

defendants are findings of fact within the meaning of

section 2254(d); whether the conduct amounts to multiple

representation, however, is "a mixed determination of law

and fact" and is determined de novo].)

The same analysis applies here. What an attorney says

and does before and after the granting of a mistrial are

historical facts subject to the statute. Whether those

statements and conduct permit an inference of consent to a

mistrial (i.e., a waiver of the defendant’s constitutional

right to proceed to judgment -- Arizona v. Washington, 434

U.S. at 503), however, is governed by principles of federal

constitutional law that define both what consent is and when

a court may infer that it was given.

As the Ninth Circuit correctly observed below, the

issue of consent is inseverable from the overriding issue of

whether the defendant was permitted to "retain primary

control over the course to be followed." (50 F.3d at 637,

quoting United States v. Dinitz, supra, 424 U.S. at 609.

See Rogers v. Richmond, 365 U.S. 534, 547 (1961) ["{S}o-

called facts and their constitutional significance may be so

blended that they cannot be severed in consideration"]).

Because consent to a mistrial constitutes a waiver of a

federal constitutional right, moreover, federal law

precludes a court from inferring consent unless "the

circumstances positively indicate a defendant’s willingness

to acquiesce in the mistrial order." (Glover v. McMackin,

950 F.2d 1236, 1240 (6th Cir. 1991).)

A finding of consent to a mistrial, therefore, is not

merely a historical determination subject to sec. 2254(d).

It is, rather, a conclusion shaped and governed by federal

constitutional legal principles and is thus "a question of

federal law which ... must [be] review[ed] de novo."

(Schiro v. Farley, _ U.S. _, _, 114 S.Ct. 783, 790-91

(1994).16 )17

16. In Schiro, this Court indicated that the finding of

"(tjhe Indiana Supreme Court ... that the jury verdict did

not amount to an acquittal on the intentional murder count"

would ordinarily be considered a finding of fact. The Court

held that sec. 2254(d) was inapplicable, however, because

"the preclusive effect of the jury’s verdict ... is a

question of federal law which ... must [be] review[ed] de

novo." (114 S.Ct. at 790-91 (1994).)

17. The state claims that Schneckloth v. Bustamonte, 412

U.S. 218 (1972), is relevant here. (Pet., p. 19.) It is

not.

The issue in Schneckloth was whether a state can show a

defendant’s consent to search was voluntary even if it

cannot show the defendant knew he could refuse to permit a

search. In answering the question affirmatively, the Court

stated that the "voluntariness [of a consent to search] is a

question of fact to be determined from all the

circumstances...." (412 U.S. at 249.)

The latter conclusion does not shed light on the

section 2254 question posed here, however. This is made

clear by the fact that this Court has held that, while the

(fn. continued on p. 19)

Even if consent to a mistrial is, as a general matter,

deemed a factual question potentially subject to section

2254(d), moreover, the statute cannot be applied to the

particular finding made by the California Court of Appeal.

That is because the California Court of Appeal -- despite

being asked to do so in Mr. Weston’s opening brief, reply

brief, and petition for rehearing, and at oral argument --

did not apply any federal constitutional principles to the

question of consent, including the central requirement that

the defendant be allowed to retain "primary control over the

course to follow." (See Pet., Exh. D, pp. 91-96. )18

Thus, if the state had raised the presumption of

correctness issue in timely fashion, the Ninth Circuit

could, should, and would have responded, as it did in Norris

v. Risley, 878 F.2d 1178 (9th Cir.1989): "Because the

[California Court of Appeal] failed to apply the correct

legal standard, there is no state court judgment to which we

can give deference." (Id. at 1181. Accord, Rogers v.

Richmond, 365 U.S. 534, 547 (1961) ["Historical facts

‘found’ in the perspective framed by an erroneous legal

standard cannot plausibly be expected to furnish the basis

for correct conclusions...."]; Lafferty v. Cook, 949 F.2d

voluntariness of a confession is also judged by the totality

of circums_ances, such a finding is not subject to 2254(d).

(See, e.g., Withrow v. Williams U.S. 113 S.Ct. 1745,

1754 (1993).)

— —_/

18. Chief Judge Wallace also fails to deal with the

"primary control" requirement in his dissenting opinion.

(50 F.3d at 639-42.)

1546, 1550-1556 (10th Cir.1991), cert. denied, 112 S.Ct.

1942 (1992) ["Although competence is a factual issue ...,

the state court’s finding of competency cannot stand given

the court’s failure to proceed under a proper understanding

of the due process requirements"].) Since the state court

never made a finding of consent as defined by federal law,

there was and is no finding that falls within the domain

section 2254(d).

If the state had timely raised the presumption issue,

furthermore, and if the California Court of Appeal had

relied on federal constitutional principles in finding

consent, then the Ninth Circuit would have been obligated to

address on the merits the applicability of section 2254(d).

(Burden v. Zant, supra, 498 U.S. at 437.)

That would have changed nothing, however. It is

abundantly clear that both the district court and the Ninth

Circuit believed that the state court’s conclusion that Mr.

Weston consented either was "not fairly supported by the

evidence" or had been shown "by convincing evidence" to be

"erroneous." (Sec. 2254(d)(8). See Parker v. Dugger, 498

U.S. 308, 320 (1991) [holding a finding of the "Florida

Supreme Court ... not fairly supported by the record"].))

Thus the Ninth Circuit held: "[D]jefense counsel’s

immediate and repeated objections demonstrate that Weston

did not consent to the mistrial.... Quite the contrary,

Weston’s counsel strenuously objected to the mistrial. The

state trial court’s declaration of a mistrial over these

—— Ss

objections deprived Weston of his right to retain primary

control over the course of the proceedings." (50 F.3d at

637-38; Pet., App. A, pp. 36-37.)

Similarly, the district court held: "It is clear from

the record that Mr. Weston did not consent to the trial

judge declaring a mistrial without prejudice -- defense

counsel actively sought to persuade the judge that such a

mistrial was not what he wanted.... [H]is subsequent

written motion certainly clarified that intent, and he made

numerous attempts to persuade the judge not to declare the

mistrial without prejudice. These circumstances make clear

that Mr. Weston did not consent to the mistrial without

prejudice." (Pet., App. B, pp. 64-66; emph. in orig.)

If the district court and Ninth Circuit had been

presented with the need to explicitly address the

presumption of correctness issue, therefore, the net result

would have been the same. Each court would have concluded

that Mr. Weston did not consent toa mistrial and that the

contrary conclusion of the California Court of Appeal was

inconsistent with the plain facts.

The latter conclusion, finally, is unassailable on the

merits.

In the immediate aftermath of the prosecutor eliciting

that petitioner had been arrested for check fraud, Mr.

Adachi did not state what kind of nistrial he was seeking.

(RT 416.) As soon as counsel could argue out of the

presence of the jury, however, he nade it clear he was not

requesting a mistrial without prejudice.19 He stated

explicitly, in both his written motion and oral argument,

that what he was seeking was a mistrial declared by the

court sua sponte, a mistrial with prejudice, an order that,

by virtue of "the Double Jeopardy Clause," would "end all

prosecution of the defendant for the offense charged ....

(Lee v. U.S., Supra, 432 U.S. at 30. See CT 127, 130, 1323

RT 424, 426, 434-435.) Each time the court attempted to

have counsel discuss his motion as an ordinary motion for a

mistrial without prejudice, counsel stuck to his position

that prosecutorial misconduct can support a dismissal with

prejudice. (See, e.g., RT 425-426.)

All the state can do is point to a single exchange.

After the trial judge asserted that "in forty years" he had

"never heard of" a court granting a mistrial with prejudice,

he asked: "All right, anyway you made a motion for

mistrial, am I correct?" Counsel answered "yes." (RT 426.)

The "yes" spoken by trial counsel did not come anywhere

close to "positive[ly] indicat[{ing] consent" to a mistrial

without prejudice. (Glover v. McMackin, supra, 950 F.2d at

1240.) The exchange reflected a disagreement as to the law.

Whereas the trial court insisted that there was no such

thing as a mistrial with prejudice based on deliberate

19. Even if counsel’s request for a mistrial at RT 416 was

a request for a mistrial without prejudice, he was allowed

to "reassess" his position. There is "no reason to lock [a]

defendant into a motion once it is made." (

Circuit Court, 845 F.2d 739, 744 (7th Cir.1988).)

prosecutorial misconduct (RT 426), defense counsel knew

there was. (See Qregon v. Kennedy, supra, 456 U.S. at 679.)

The fact that defense counsel told the court he was asking

for a mistrial, consequently, did not mean he was asking for

one on the court’s terms. Indeed, following counsel’s

"yes," the court proceeded to question the prosecutor

regarding his motivation in eliciting the inadmissible and

prejudicial rebuttal testimony. (RT 427-428.) From defense

counsel’s perspective, the latter questioning was perfectly

relevant to petitioner’s motion for mistrial with prejudice.

To the extent there was any ambiguity, furthermore, it

was removed by the written motion Mr. Weston filed the next

morning. That motion made clear that Mr. Weston’s first

choice was a mistrial with prejudice. The motion made

clear, moreover, that a mistrial without prejudice was not

petitioner’s second choice. He made very clear that his

second choice was to continue with the first trial and to

have the court admonish the jury regarding the inadmissible

evidence the prosecutor had elicited. (CT 132.) The court

had the motion in hand before ruling. (RT 429.)

Indeed, the court entertained further argument after

receiving the written motion. Everything stated by defense

counsel during the hearing was directed at showing the

prosecutor’s misconduct was designed to induce a mistrial.

(RT 434-436.) Rather than "positive[ly] indicat[ing] ...

defendant’s willingness to" consent to a mistrial without

prejudice, counsel’s argument was one hundred percent

consistent with his written motion and his argument the day

before.

Finally, even if, at the moment the trial court

purported to "grant" Mr. Weston’s motion, the court truly

believed Mr. Weston was consenting to a mistrial without

prejudice, such a belief would have been dispelled by

counsel’s response immediately thereafter. Counsel not only

made clear that Mr. Weston’s motion was based solely on

prosecutorial misconduct -- counsel also requested the

opportunity to talk with Mr. Weston before the court

discharged the jury. (RT 439-440.) The court cut counsel

off before he could elaborate, but counsel’s intent was

clear: he wanted to ask Mr. Weston whether he wished to

consent to a mistrial without prejudice. (CT 134-136.)2°

Numerous cases have held that consent to mistrial will

not be inferred where the defendant was not given the

opportunity to object.*! In this case, despite the court’s

20. The declarations that were later filed by Mr. Weston

and his attorney (CT 134-136) only confirmed the obvious.

21. See U.S. v. Jorn, supra, 400 U.S. at 487 ["the trial

judge acted so abruptly in discharging the jury that had the

[defendant] been disposed ... to object to the discharge of

the jury, there would have been no opportunity to do so"];

, Supra, 917 F.2d at 393 ["Because [defendants]

had no opportunity to object, we will not infer that they

consented to the mistrial"]; Lovinger v. Circuit Court, 845

F.2d 739, 744, 745 (7th Cir.1988) [no “implied consent"

where "no opportunity to object;" failure "to allow

[defendant] to express his view on the propriety of mistrial

-.- deprived [him] of the opportunity to exercise any

control over the fate of the trial"];

Court, 203 Cal.App.2d 687, 693 (1962) ["“with such an

important right involved the defendant personally should

have been given an opportunity to consent ... or

specifically to refuse"].

(fn. continued on p. 25)

effort to silence his attorney, petitioner did object and he

did so as soon as the court’s intent was declared and prior

to the jury being discharged. If lack of opportunity to

object is not consent, a fortiori, defendant’s actual

objection is irreconcilable with a finding of consent. The

objection plainly did not amount to a "positive ...

indicat[ion of] ... defendant’s willingness to acquiesce in

the mistrial order." (Glover v. McMackin, supra, 950 F.2d

at 1240. Accord, People v. Catten, 508 N.E.2d 920, 923-924,

926-927 (N.Y.1987).)?2

The California Court of Appeal, in its discussion of

the consent issue, made no effort to explain how defense

counsel’s vociferous objection when the mistrial

announcement was made was in any way consistent with a

finding of consent. (App. D, pp. 95-96.)

Also see State v. Flick, 495 A.2d 339, 344-346

(Me.1985) [court initially denied defendant’s motion for

mistrial without prejudice, then later granted it without

asking defendant if he still wished to abort the

proceedings; held: no consent, retrial barred]. Accord,

, 395 A.2d 759, 767-773 (D.C.App.1978).

In California, the law is that consent will not be

inferred from a defendant’s silence even where he was given

an opportunity to object and remain silent. (See Compton v.

i , 6 Cal.3d 55, 63 (1971); People v. Chaney,

202 Cal.App.3d 1109, 1117 (1988).)

22. In Catten, the court initially denied co-appellant

Murphy’s mistrial motion. Subsequently, without consulting

Murphy, the court granted the motion. Defense counsel

objected. Circumstances had changed and he wished to

discuss the matter with Murphy. The court rebuffed hin.

Held: no consent could be implied under these

circumstances. (Ibid.)

The situation here was very much like that People v.

Squires, 300 N.W.2d 366, 367 (Mich.App.1981). In Squires,

defense counsel moved midtrial for dismissal with prejudice

based on alleged prosecutorial misconduct. The trial court

rejected the motion but granted a mistrial without

prejudice. The appellate court found retrial barred by

double jeopardy:

Clearly, the defendant here did not consent to a

mistrial. Rather, he sought a permanent

termination of the criminal proceedings via his

self-styled motion for dismissal with prejudice.

(300 N.W. 2d at 367.)

That conclusion is perfectly apposite here. The

conclusion of both the district court and the Ninth Circuit

that Mr. Weston did not consent to a mistrial without

prejudice is supported by overwhelming evidence. There is

no reason whatsoever for this Court to disturb the

indisputably correct conclusions reached by the courts

below.

Il.

The state claims the Ninth Circuit failed to afford the

trial court’s conclusion that a mistrial was necessary the

degree of respect required by Arizona v. Washington, supra,

434 U.S. at 510. The claim has no merit.

The respect principle (which the Ninth Circuit was

cognizant of -- 50 F.3d at 638, fn. 3.) is but one part of

the analysis. This Court has also said that the power to

declare a mistrial and to force a defendant to stand trial

again is one that may be exercised "only in very

extraordinary and striking circumstances." (U.S. v. Jorn,

supra, 400 U.S. at 485.)23 The state ignores the latter

principle. It also ignores the concomitant principle that

it is the state that "bears the heavy burden of

demonstrating the ‘high degree’ of necessity required for a

declaration of mistrial without the defendant’s consent."

(50 F.3d at 639, quoting Arizona v. Washington, 434 U.S. at

23. Accord, Arizona v. Washington, 434 U.S. at 506, fn. 18:

the power may be used only " ‘with the greatest caution,

under urgent circumstances, and for very plain and obvious

causes ....’"

505-06.)24

In ascertaining whether the state had met its burden,

the Ninth Circuit, following this Court’s prescription,

considered whether the trial court, in opting "’to abort the

trial,’" kept in the forefront "’the importance to the

defendant of being able, once and for all, to conclude his

confrontation with society through the verdict of a tribunal

he might believe to be favorably disposed to his fate.’"

(50 F.3d at 638, fn. 3, quoting Arizona v. Washington, 434

U.S. at 511.) As discussed above, the circuit court

correctly found that the trial judge in this case, rather

than placing a high value on the defendant’s own view

whether continuing or aborting the first trial would be in

the defendant’s best interests, "acted abruptly by cutting

off Adachi’s objections and refusing to allow him to confer

with Weston before he discharged the jury." (50 F.3d at

639.)2> The state utterly ignores this aspect of the

analysis.

24. "[(Tjhe strictest scrutiny is appropriate[, moreover, ]

.-. when there is reason to believe that the prosecutor is

using the superior resources of the State ... to achieve a

tactical advantage over the accused." (Arizona v.

Washington, supra, 434 U.S. at 508.) That was precisely the

case here.

25. Cf. Braxton v. U.S., supra, 395 A.2d at 767 [retrial

barred where trial court declared mistrial "in a manner and

under circumstances" in "which ... the right of the

defendant to retain that primary control" was not "fully

recognized;" Lovinger v. Circiit Court, supra, 845 F.2d at

745 [retrial barred where court acted "precipitately" and

without "great care, if not "irrationally or irresponsibly,"

in declaring mistrial after defense counsel began to

protest]; and other cases citeji in footnote 21 above.

The Ninth Circuit also found that the "state trial

court did not properly consider alternatives to a mistrial"

such as "the curative value of limiting instructions," which

in this case "may well have eradicated any juror prejudice."

(50 F.3d at 639.) The latter conclusion is also correct.

When discharging the jurors, the trial judge told them

he did not think an admonition would have been effective.

(RT 441.) The court never discussed the matter with

counsel, however. The court’s failure to permit any pre-

discharge discussion regarding the adequacy of the

cautionary instructions counsel had proposed indicated that

the court was less than serious about looking for

alternatives less drastic than a mistrial. (See, e.g.,

Arizona v. Washington, supra, 434 U.S. at 515-516 and fn. 34

[parties must be given "full opportunity to explain their

positions on the propriety of the mistrial"].)2°

Equally important, while the state feels comfortable

attacking the Ninth Circuit on procedural grounds for not

deferring to the trial judge, it must be pointed out that

the state has never -- either in the certiorari petition or

26. Cf. U.S. v. Klein, 582 F.2d 186, 195 (2nd Cir.1978)

[praising trial judge for asking counsel to suggest

alternatives]; U.S. v. Sanders, 591 F.2d 1293, 1298 (9th

Cir.1979) [double jeopardy precluded retrial where trial

court declared a mistrial over the defendant’s objection

and, among other things, the record failed to show the trial

court had considered “issuing a curative instruction"];

People v. Benton, 260 N.W.2d 77, 82, 84 (Mich.1977) [retrial

barred: court declared mistrial without "any discussion with

counsel of the efficacy of alternative curative measures"

such as "a cautionary instruction"].)

’

eee:

in any prior pleading -- argued that the trial court was

substantively correct in its (purported) conclusion that

cautionary instructions would not be effective. The state

cannot defend the trial court’s substantive position because

it is constantly (and rather successfully) engaged in

convincing the California Supreme Court that such cautionary

instructions are effective.*” This Court has likewise found

such instructions to be effective.28

27. See, e.g., People v. Davis, 10 Cal.4th 463, 506 (1995)

{"The admonition cured any potential harm"]; Pe Vv

6 Cal.4th 215, 263 (1993) ["we presume that the jury heeded

the admonition and any error was cured"]; People v. Frank,

51 Cal.3d 718, 727-728 (1990) [must assume jury heeded

admonition to disregard prosecutor’s assertions that capital

defendant had previously molested two other children];

People v. Keenan, 46 Cal.3d 478, 525 (1988) [admonishing

jury in robbery case to disregard evidence of prior robbery

deemed effective"].

28. See Romano v. Oklahoma, U.S. , 114 S.Ct. 2004,

2012 (1994) [Court presumes that, based on limiting

instructions given to it, jury would give "little -- if any

--" weight to information that the capital defendant had

already been sentenced to death in another case]; Greer v.

Miller, 483 U.S. 756, 766, fn. 8 (1987) [Court presumes jury

will follow instruction to disregard prosecutor’s

insinuation that testifying defendant failed to give

exculpatory version of events when arrested]; Richardson v.

Marsh, 481 U.S. 200, 206 (1987) [Court presumes jury will

heed instruction to disregard anything in co-defendant’s

confession that indirectly incriminates the defendant];

Watkins v. Sowders, 449 U.S. 341, 347 (1981) [Court presumes

jury will heed instruction to disregard evidence of

illegally obtained eyewitness identification evidence]; U.S.

v. Hoelker, 765 F.2d 1422, 1426 (9th Cir.1985) [Court of

Appeals presumes jury will follow instruction not to permit

evidence that defendant committed crime X to influence its

decision whether the defendant committed crime Y]. See also

U.S. v. Sanchez, 722 F.2d 1501, 1508-1509 (11th Cir.1984)

[court holds improperly admitted evidence of uncharged

murders in cocaine case harmless in light of admonition that

jury not to consider the evidence].

It is particularly possible in this case that

instructions would have been effective, moreover, because:

1) check fraud and sexual assault are highly dissimilar

crimes?9; 2) defendant’s proposed instructions called for

the jury to be told (truthfully) that the check fraud

allegation had been dismissed (CT 133; RT 428)39; 3) the

jury was not told what offense Mr. Weston had been on parole

for?1; and 4) as discussed above, the prosecution’s case

against Mr. Weston was seriously flawed.

The Ninth Circuit’s conclusion that limiting

instructions "may well have" been effective here thus was

not only uncontested by the state and consistent with the

decisions of this Court and the California Supreme Court --

it was also perfectly reasonable. It was likewise perfectly

reasonable for defense counsel to believe that, with the

cautionary instructions, Mr. Weston had a decent chance of

acquittal -- better, at least, than at a second trial in

which the prosecution would beef up its case.

29. See, e.g., People v. Fries, 24 Cal.3d 222, 230 (1979)

["risk of ... prejudice ... far greater when the prior

conviction is similar ... to the crime charged"].

30. Cf. U.S. v. Burton, 525 F.2d 17, 20 (2nd Cir.1975)

[reference in drug case to unrelated narcotics investigation

involving defendant deemed cured by admonition similar to

one proposed in this case -- investigation did not culminate

in arrest, charges or conviction].

31. See People v. Harris, 22 Cal.App.4th 1575, 1581 (1994):

evidence that defendant on parole at time of offense deemed

harmless.

The Ninth Circuit also found that the "state trial

judge ... did not properly consider whether the mistrial

would benefit Weston." (50 F.3d at 639.) As shown above,

"the first trial was going very well for [defendant] at the

time the" mistrial was declared." (Ibid.) The prosecution,

moreover, capitalized on the mistrial to double its witness

list, steal two defense witnesses, and conduct further

investigation. (See fn. 8 above.) The trial court showed

no recognition whatsoever -- despite the written motion by

the defense that made defendant’s position clear -- that it

might be in Mr. Weston’s best interests to continue with the

first trial despite the prosecution’s attempt to bias the

jury. The state ignores this aspect of the analysis as

well.

Finally, in considering the state’s claim that the

Ninth Circuit has failed to accord sufficient deference to

the state trial judge’s decision, it is necessary to bear in

mind the context in which the claim is made. This is the

same trial judge, after all, who, among other things,

contemptuously rejected defense counsel’s objections to the

rebuttal evidence; later blamed defense counsel for not

objecting to the latter evidence; claimed there was no such

thing as a dismissal with prejudice; claimed the rebuttal

witness had "blurted out" the reference to Mr. Weston’s

arrest for check fraud; moved instantaneously from

haranguing defense counsel to granting the mistrial; told

defense counsel to "sit down and be quiet" when he attempted

to delay the discharge of the jury; twice called defense

counsel a liar in front of the jury; indicated in front of

the jury that he agreed with the prosecutor that defense

counsel was dishonest; and, because of such conduct, was

held by the district court to have rendered Mr. Weston’s

second trial unconstitutionally unfair (App. B, p. 81).32

To put it bluntly, this was a trial judge whose rulings

deserved not deference but strict scrutiny. If anything,

the courts that have reviewed this case have been too

reluctant to criticize the partiality and lack of decorum

exhibited by the trial judge.

In sum, there was no manifest necessity for the

mistrial here. In a case in which the defendant. tried to

prevent the admission of the prejudicial evidence, the

evidence came in because of erroneous rulings by the trial

court and intentional misconduct by the prosecutor, the

defendant preferred to continue with the trial anyway

because it was going so well and because a second trial

could only benefit the prosecution, and limiting

instructions were likely to mitigate the harm, there were no

"extraordinary and striking circumstances" justifying the

trial court’s decision to end the trial prematurely (United

States v. Jorn, 400 U.S. at 485). Instead of ignoring

defendant’s wishes, refusing to hear him out, refusing to

32. In earlier pleadings in this case, Mr. Weston

catalogued another dozen prejudicial statements the judge

made in the jury’s presence, as well as many inappropriate

rulings and comments that the jury did not hear. (See,

e.g., Brief of Petitioner and Appellee, pp. 27-28.)

allow him to control his own destiny, and giving the

prosecutor precisely the second chance he hoped for, the

trial court should have allowed the first trial to play

itself out as the defendant wished. The conclusion of the

district court and Ninth Circuit that the trial judge’s

failure to do so violated the Double Jeopardy Clause is

correct. It should not be disturbed.

Men

CONCLUSION

For all of the foregoing reasons, the petition for

certiorari should be denied.

Dated: August 7, 1995.

Respectfully submitted,

Bruce Eric Cohen

Attorney for Respondent

THEODORE ANTHONY WESTON

ORIGINAL

NO. 95-69

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PEG KERNAN, WARDEN,

Petitioner,

Vv.

THEODORE ANTHONY WESTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DECLARATION OF SERVICE

I, Wendy E. Morrison, declare that I am over 18 years

of age, and not a party to the within cause; my business

address is 1442-A Walnut Street, Berkeley, California 94709.

Copies of the attached BRIEF IN OPPOSITION AND REQUEST FOR

LEAVE TO PROCEED IN FORMA PAUPERIS were sent on August 10,

1995, by United States first-class mail, postage fully

prepaid, to the following persons at the addresses given

below:

DANIEL E. LUNGREN CATHY CATTERSON

Attorney General of the Clerk

State of California U.S. Court of Appeals

50 Fremont Street, Suite 300 Ninth Circuit

San Francisco, CA 94105-2239 P.O. Box 193939

Two Rincon Center

San Francisco, CA 94119

Declaration of Service -1l-

TULCDORE ANTHONY WES'TON

(Respondent )

2510 Fair Oaks Blvd.

#134

Sacramento, CA 95825

I declare under penalty of perjury that the foregoing

is true and correct.

Executed this 10th day of August, 1995, at Berkeley,

California.

ea ee

Wendy E. Morrison

BRUCE ERIC COHEN - mens.

ATTORNEY AT Lay RECEIVED

1442-4 WALNUT STREET

BERKELEY, CALIFORNIA 94709 y - 1995

Shine ' AUS 14

TELEPHONE: (510) 273, 2 |

na (510) ae OFritc Uc ihc CLEkK

SUPREME COURT, US

August 10, 1995

William K. Suter

Clerk

Supreme Court of the Uniteg States

Washington, D.c. 20543-0001

Encloseg Please find the following: 1) an Original and

ten Copies of Mr. Weston’s Brief in Opposition:

brief; 3) an Original 4nd one COpy of mr. Weston’s Request

for Leave to Proceed In Forma Pauperis; and 4) a Proof of

Service regarding both the brief ang the motion,

Please note that UNndersigneg Counsel’s @Pplication for

admission to the Bar of this Court was mailed under Separate

Very truly yours,

Bm CL

Bruce Eric Cohen

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.