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Incredible decision by 9th Circuit: Must Read Now

In Polk v. Sandovalthe Ninth Circuit Court of Appeals (Judges Fletcher, Clifton and Ikuta) finds that a defendant's federal constitutional right to due process was violated based upon the Kazalyn instruction on premeditation. I'm still reviewing the decision in depth, but here are some highlights:

Background: The defendant was charged with 1st degree murder. His trial took place prior to the Nevada Supreme Court's decision in Byford but his appeal was resolved after the Byford decision was issued. As in Byford and Garner, the Nevada Supreme Court found that Polk was not entitled to the the instructions defining premeditation and deliberation that were set forth in Byford:

"Appellant contends that the district court erred in giving an instruction this court approved in Kazalyn v. State regarding premeditation and deliberation because the instruction is clearly erroneous under this court's subsequent holding in Byford v. State. Appellant also argues that the district court erroneously rejected a proposed premeditation instruction which separately definited premeditation and deliberation. We recently clarified Byford, as follows: "Our opinion in Byford concludes that the Kazalyn instruction does not fully define 'willful, deliberate, and premeditated,' and it provides other instructions for future use -- but it does not hold that giving the Kazalyn instructed constituted error, not does it articulate any constitutional grounds for its decision." [citing Garner]. Further "use of the Kazalyn instruction in trials which predate Byford does not constitute plain or constitutional error. Nor do the new instructions required by Byford have any retroactive effect on convictions which are not yet final: the instructions are a new requirement with prospective force only." [citing Garner]. Because appellant's trial predated Byford, we conclude that the district court's use of the Kazalyn instruction, rather than appellant's proposed instruction, was not error."

The Ninth Circuit disagrees.

The Holding: "We hold that Polk's federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation. The error was not harmless. We reverse and remand to the district court to grant the writ unless the State elects to retry Polk within a reasonable time."

The Circuit found that the Nevada Supreme Court's decision on Polk's direct appeal was contrary to clearly established federal law. "It is clearly established federal law, as determined by the Supreme Court, that a defendant is deprived of due process if a jury instruction 'ha[s] the effective of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner's statement of mind.' Sandstrom v. Montana, 442 U.S. 510, 521 (1979); Francis v. Franklin, 471 U.S. 307, 326 (1985) . . . ."

It explained that under NRS 200.030(1)(a), first degree murder is a willful, deliberate and premeditated killing and that in Byford, the Nevada Supreme Court reaffirmed that all three elements must be proven beyond a reasonable doubt before an accused can be convicted of the offense. It is not sufficient for the killing simply to be premeditated and that deliberation remains a critical element. Polk's jury, however, was instructed in accordance with Kazalyn that it was to find "willful, deliberate, and premeditated murder" if it found premeditation. "This instruction is clearly defective because it relieved the state of the burden of proof on whether the killing was deliberate as well as premeditated." The Circuit then explained the flaw of the Nevada Supreme Court's analysis of the instruction in Byford and Garner and in Polk's direct appeal:

"Instead of acknowledging the violation of Polk's due process right, the Nevada Supreme Court concluded that giving the Kazalyn instruction in cases predating Byford did not constitute constitutional error. In doing so, the Nevada Supreme Court erred by conceiving of the Kazalyn instruction issue as purely a matter of state law. Rather, the question of whether there is a reasonable likelihood that the jury applied an instruction in an unconstitutional manner is a 'federal constitutional question.' See Francis, 471 U.S. at 316. The state court failed to analyze its own observations from Byford under the proper lens of Sandstrom, Franklin, and Winship, and thus ignore the law the Supreme Court clearly established in those decisions -- that an instruction omitting an element of the crime and relieving the state of its burden of proof violates the federal Constitution. See Evanchyk v. Stewart, 340 F.3d 933, 939-40 (9th Cir. 2003). Since the Nevada Supreme Court "fail[ed] to apply the correct controlling authority," its decision was contrary to clearly established federal law, as determined by the Supreme Court. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citing Williams v. Taylor, 529 U.S. 362, 413-14 (2000)."

The Circuit then concluded that the error had a substantial and injurious effect or influence in determining the jury's verdict and granted habeas relief as a result.

This is certainly good news for defendants in murder cases who had decisions pending when Byford was issued (February 28, 2000). I think there's also an incredibly strong argument that this ruling applies to pre-Byford cases as well.

Big, huge congratulations to Lori Teicher of the Federal Public Defender's Office.

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