Stephen Deck v. Mack Jenkins, 768 F.3d 1015

Background

Deck (a CHP lieutenant) chatted online with a decoy posing as a 13‑year‑old (“Amy”), arranged to meet, drove to the meeting place, and was arrested at the park with a camera, MapQuest directions to the apartment, and condoms in his car.
He was convicted in California of attempted lewd or lascivious act on a child (attempt), sentenced to jail and probation.
At trial defense argued Deck lacked intent to commit a lewd act on the night of the meeting; defense emphasized the temporal element of attempt (that the intent must coincide with the overt act).
In rebuttal the prosecutor repeatedly argued (incorrectly under California law, per the state appellate court) that the jury could convict if Deck merely took a direct step toward a plan to commit the lewd act at some point in the future (e.g., next day, next week).
The California Court of Appeal concluded the prosecutor misstated the law but held the error harmless because the trial court gave correct jury instructions and the misstatement was isolated; the state supreme court denied review.
On federal habeas the Ninth Circuit majority reversed: it found the misstatements went to the core defense, were not corrected, the jury sought clarification on the temporal issue, and under Brecht/O’Neal there is "grave doubt" about harmlessness — remanding for habeas relief (new trial unless state elects otherwise). Judge M. Smith dissented on AEDPA deference and harmlessness grounds.

Issues

Issue	Plaintiff's Argument (Deck)	Defendant's Argument (State)	Held
Whether prosecutor’s rebuttal misstated the law of attempt	Prosecutor argued jury could convict based on a future rendezvous plan; that misstatement negated an essential element (temporal intent)	Prosecutor’s comments were isolated, and the jury was correctly instructed on attempt	CCA: misstatement occurred but harmless; Ninth Circuit: misstatement was constitutional error because it was not corrected and went to the heart of the defense
Whether prosecutorial misstatement deprived Deck of due process under Darden	Misstatement so infected trial fairness that verdict is not worthy of confidence	State: jury instructions correctly stated law and juries are presumed to follow instructions (Weeks); thus no constitutional violation	Ninth Circuit: applying Darden and Brecht, found a constitutional trial error because of grave doubt about harmlessness
Standard of review under AEDPA and harmless‑error analysis	Relief warranted because state court’s harmlessness finding cannot substitute for Brecht review of constitutional error	State/Court of Appeal view: its harmlessness ruling presumptively resolves federal claim; federal court must defer under AEDPA	Ninth Circuit: applied Brecht/O’Neal to assess prejudice "without regard" to state court’s harmlessness determination and concluded relief appropriate
Effect of jury note and lack of corrective instruction	Jury asked to clarify whether defendant had to do anything that day or only "put it in play" — shows confusion and influence by prosecutor’s alternative theory	State: jury later restarted deliberations with a new juror and did not resubmit question; the written instructions were correct and presumed followed	Ninth Circuit: the note plus absence of an answer and conflicting statements left the court in "grave doubt" about harmlessness; reversible error absent waiver by state

Key Cases Cited

Darden v. Wainwright, 477 U.S. 168 (1986) (prosecutorial misconduct violates due process only if it so infects trial with unfairness as to deny due process)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (habeas relief requires showing that trial error had substantial and injurious effect or influence on verdict)
Fry v. Pliler, 551 U.S. 112 (2007) (Brecht harmless‑error standard governs federal habeas review of trial errors and subsumes AEDPA harmlessness review)
O’Neal v. McAninch, 513 U.S. 432 (1995) (if conscientious judge has "grave doubt" about harmlessness, petitioner must prevail)
Weeks v. Angelone, 528 U.S. 225 (2000) (jurors presumed to follow a court’s instructions)
Boyde v. California, 494 U.S. 370 (1990) (arguments of counsel generally carry less weight than court instructions; misstatements of law can be corrected by court instruction)