David Lewis Rice v. Tana Wood, Superintendent, David Lewis Rice v. Tana Wood, Superintendent

see, facts, e.g., v. Bender limited Jones purely economic these ery in maritime field for Works, damage); Welding & Machine by physical unaccompanied loss (9th Cir.1978), we we nor do believe Admiralty § at 16-37 16.03[D] on 8 Benedict strictly should. rule has been followed This Fourth, Fifth, Second, Third, First, is no claim we conclude there Because See, e.g., Barber Circuits. and Eleventh damages with- in maritime tort for economic Maru, 764 F.2d 50 Lines Donau A/S M/V injury, reach physical we need not out actual (1st Cir.1985). the Act’s Pacific’s assertion Southern displace maritime common law. remedies hand, We, have made on the other Ursich, exceptions. In limited Carbone AFFIRMED. (9th Cir.1953), relying 181-82 favorites that seamen are the on the notion law, recovery admiralty allowed for lost we fouling of resulting negligent

profits full of fish. In nets which were

fishermen’s Oppen, 501 F.2d 558 Union Oil Co.

Cir.1974), Dry apply the Robins we did not damage to fish rule in the context of

Dock ecosystem spills. due to oil and the marine RICE, Petitioner-Appellee, David Lewis duty that oil drillers “are under We stated conduct their fisherman to to commercial WOOD, Superintendent, Tana reasonably pru production in a drilling and Respondent-Appellant. negligent dimi to avoid the dent manner as limit aquatic life.” Id. at 570. We nution of RICE, Petitioner-Appellant, David Lewis ruling “open the door to ed our so as those, by be asserted other claims fishermen, whose economic than commercial WOOD, Superintendent, Tana personal affairs were discommoded.... Respondent-Appellee. Dry Dock general ] rule of Robins [that 93-99011, 93-99012. Nos. by legitimate urged upon us defendants has operate.” sphere within which to Id. We Appeals, United States Court the exact contours of this were silent on Ninth Circuit. “legitimate sphere.” Argued and Submitted June exception, if it not extend this We will one, not make it the case at hand. We did Decided Feb. we relied on clear in Union Oil whether tort law. We stated maritime or California say are content to this reason we “[f]or regard it as purposes of this case we

that for designated are

irrelevant whether our efforts admiralty law exposition of law or the Thus, Id. at 563. our Union

of California.” as a wholehearted opinion cannot be read

Oil admiralty law doctrine. See id.

shift in J., important, (Ely, concurring). More terms, limited to the

by Union Oil is its own sphere; if it is under admiral-

environmental law, out

ty only be said to have carved it can Dry Dock unique exception to the Robins duty on oil drillers to fish placing

rule Moreover, we ecosystem. marine

and the outside of applied

have never Union Oil Mahler, MacDonald, Hoague &

Robert S. Bayless, Seattle, Washington; Peter Offen- Hillier, becher Thomas of Federal and Office Defender, Seattle, Washington; Public and Frieke, Wayne Montell Taco- E. Hester ma, petitioner-appel- Washington, lee/cross-appellant David Rice. Lewis Young, O’Grady Thomas Christine Gre- J. Weisser, goire, and D. of Attor- Paul Office General, ney re- Olympia, Washington, for Tana spondent-appellant/cross-appellee Wood. WALLACE, Judge,

Before: Chief JAMES BROWNING, SCHROEDER, R. NELSON, FLETCHER, D.W. CYNTHIA HALL, KOZINSKI, R. DAVID HOLCOMB TROTT, THOMPSON, T.G. NELSON HAWKINS, Judges. Circuit KOZINSKI; Opinion by Judge HAWKINS; by Judge Dissent Concurrence Judge NELSON. D.W. KOZINSKI, Judge. Circuit Lewis Rice was absent from David returned the courtroom when and sentenced him to death. its deliberations per appeal After an direct unsuccessful Rice, 110 petition, sonal restraint see State v. de 757 P.2d 889 cert. Wash.2d nied, (Rice I), sought a Rice corpus in district

writ of the federal habeas Washing for Western District of court stayed habeas court ton. The district bring could a second proceedings so Rice petition. After the Wash personal restraint peti ington Supreme Court dismissed Rice, tion, see In re Wash.2d denied, 958, 113 P.2d 1086 cert. (Rice II), 421, 121 L.Ed.2d 344 granted petition and judge Rice’s the district sentence, holding that Rice aside set jury convicted Rice on validly guilt phase, did not waive his could They then heard evidence panel court af- all four counts. present. to be A of this firmed, concluding pertaining and retired to delib- that Rice had constitu- Shortly when the before the informed tional erate. decision, sentence; they that he had not the bailiff that had reached a rendered his judge that Rice had been taken right; waived this and that the error was learned and, therefore, subject hospital ingested a structural to the because he had Wood, analysis. cigarettes. Rice v. from The harmless-error See nicotine drink brewed (Rice Cir.1995) judge that 1400-02 later informed the medical staff III). unresponsive the case reheard en banc Rice was to communication We ordered concerning pumped. to examine the issues Rice’s ab- would have to have his stomach sence. attorneys wheth- judge then asked the The presence Rice’s was neces- er believed

I sary. that he didn’t Defense counsel stated purported to waive Rice’s think so and set out The sad facts of this case have been object. prosecutor didn’t present; to be I, in full elsewhere. See Rice 757 P.2d judge proceeded to receive the The then II, 891-900; 1089-91; Rice 828 P.2d at Rice poll jury in Rice’s absence. sentence and III, 44 F.3d at 1398-99. We summarize mitigating The found no circumstances briefly. them leniency; juror that would merit disa- An- On Christmas Eve Charles and greed with the announced decision preparing nie Goldmark were at home polled. Pursuant to Wash.Rev.Code holiday petitioner dinner when came to their 10.95.030, § the court sentenced Rice to posing delivering a taxicab driver door death.1 toy package. Brandishing gun, he forced way his into their home and used chloroform II young couple and their two to render the boys bludgeoned unconscious. He then them or not Rice’s absence Whether them with a steam iron and stabbed his courtroom when the announced sen- by guests were found knife. The Goldmarks error is not tence amounts to constitutional arrived at their home a short time later. who Spain, us. As in Rushen v. before spot pronounced dead on the Annie was n. 117 n. 104 S.Ct. boys all died within five Charles and the (1983), the state has “conceded L.Ed.2d 267 weeks. petitioner’s ... [the absence] that estab- charged constitutional error.... eventually [W]e was arrested and lished federal

Rice assume, degree deciding, [petitioner’s] aggravated first without with four counts of right[ presence ... sepa- ] [was] into His trial was bifurcated murder. implicated in the circumstances of this sentencing phases, with the rate agree, completion case.”2 We also for the reasons stat- jury sitting in both. At the same 97, 105-06, Massachusetts, judge pronounced it was the who sen- der 1. While tence, However, 330, 332, (1934)). Washington he had no discretion L.Ed. 674 " mitigating law. Once the found insufficient 'when would be use that is not true less, ” leniency, recommend the death circumstances to or the benefit but a shadow.' mandatory. See Wash.Rcv.Codc sentence § 106-07, 332). U.S. 54 S.Ct. at 10.95.030(2) ("If ... the trier of fact finds that The Court has held there is no constitutional mitigating arc not sufficient circumstances there proceedings present where the to be death."). leniency, the be to merit sentence shall help defendant could have done more to his Stincer, 482 U.S. at cause than in this case. open surprising, as this is an 2. The concession (no right present to be 107 S.Ct. Supreme question. Court has stated that The pros hearing competency during to determine process right present 'to be defendant "has a due witnesses); Gag key United States v. ecution's person has a own whenever his 526-27, non, relation, substantial, reasonably fulness " (no curiam) (per 84 L.Ed.2d 486 charge.’ opportunity against to defend during Stincer, in camera examination Kentucky being by juror complained intimidated (quoting Sny- who See, e.g., Fulminante, trial panel, that the district court did mere errors. ed validly finding Rice did not (listing not err in S.Ct. at 1262-64 III, errors). present. See Rice waive his 1400-01. remain- 44 F.3d at issue Supreme explained Court has is whether Rice’s absence when during trial errors are those “which occurred his sentence amounted to structural declared jury, presentation to the case or trial error.3 quantitatively which therefore as- very Supreme Court said pre- evidence sessed the context other clearly excep structural errors “are the to determine whether sented order its Clark, tion and not rule.” Rose beyond harmless admission was reasonable 3101, 3106, 92 Id. 111 at doubt.” at S.Ct. (1986). “Accordingly, if the de L.Ed.2d 460 errors, hand, on Structural the other are by an fendant had counsel and was tried permeate entire defects conduct “[t]he impartial adjudicator, strong pre there is a end,” 309, beginning the trial from to id. at of may sumption other errors that 1265, 111 at or that the frame- “affect[ ] S.Ct. subject are to have occurred harmless-error proceeds, within the trial work which rather 579, analysis.” at 106 S.Ct. at simply than an error the trial word, highly True to its the Court been itself,” 310, at 111 id. S.Ct. at 1265. rights parsimonious adding to list of which, violated, to error. amount structural Rice’s when the announced absence 499 examples Arizona v. simply sentence does not fall within the 1246, 1264-65, 113 279, U.S. category errors. narrow of structural Had leading case on L.Ed.2d 302 present, pleaded he been couldn’t subject, of the are few and concern some spoken judge. with the to the He protections important of our criminal most play; had no active role to he was there Ohio, 510, justice Tumey system: to hear the announce its decision. The (1927) 437, 511, 438, 71 L.Ed. 47 749 S.Ct. not, in this the denial of error case does like (denial judge); right impartial to Gideon impartial judge or the of coun- assistance 335, 345, 342, 83 Wainwright, sel, beginning from to affect the trial end. (denial (1963) 797, 792, 799 S.Ct. L.Ed.2d Rather, errors, be quan- like most trial it can counsel); Wiggins, McKaskle to titatively to determine assessed order 8, 177 n. n. U.S. Rushen, whether or not it was harmless. (1984) (denial Cf repre to (defendant’s 104 S.Ct. at 456 oneself); Georgia, sent Waller v. judge' from conversation between absence n. 49 & n. & subject analy- juror is to harmless-error (denial public L.Ed.2d 31 supposed error “can sis because effect trial); Hillery, 474 Vasquez v. normally by post-trial be hear- determined 263,106 623, 88 L.Ed.2d 598 Borg, 50 ing”); Hegler F.3d 1474-75 (unlawful exclusion of members of defen (where (9th Cir.1995) was absent grand telling as jury). from dant’s race As testimony, judge district from readback that are structural the short list defects reporter four to be court longer list the Court has held examined the much panel’s defendant); error. We leave U.S. at cd reversible (no taken opinion however, panel, on issues undisturbed. these has, scene). crime Because Wood unnecessary to view the decide found it whether reasons, her chosen not contest own properly had denied the district court Wood’s See, e.g., day. point, it we leave for another particular of Rice's motion to strike set claims (deciding, Gagnon, 105 S.Ct. 1482 claims) (the they only Group B because related to Rushen, type years two after of absence already had been and Rice’s sentence did amount issue in Rushen III, we 44 F.3d at 1403. Because set aside. Rice error). sentence, ruling panel’s to the vacate Group again B relevant and claims once become appeals cross-appeals on and Rice 3. Wood panel. we refer them back to ruling grounds other than the district court’s the sentence amount- return of Rice’s Court) (“A (White, J., opinion confes- trial to determine ef- of the defendant’s state Indeed, absence). evidence. sion is like no other fect of his probably confession is defendant’s own court, as well as the D.C. and Tenth Our probative damaging most evidence that Circuits, applied analy- harmless-error him.”) (internal quo- against can be admitted absence at return of sis to the defendant’s omitted); tations id. at verdict, circuit has held it to while no Court) (“[A]n C.J., opinion (Rehnquist, of the Tansy, structural error. See Larson v. involuntary may confession have a more dra- (10th Cir.1990) (applying harm- on course of a trial than do matic effect analysis less-error to defendant’s absence particular other trial errors —in cases it verdict); from return of United States ...”); devastating to a defendant id. Cir.1979) Friedman, 593 F.2d J., (Kennedy, con- 111 S.Ct. at 1266-67 (defendant’s “absence from of verdict [return videotape curring) (“Apart, perhaps, from a jury] beyond ... polling was harmless crime, difficulty one would have find- doubt”); a reasonable Wade v. United damaging to a criminal evidence more (D.C.Cir.1971) (“It innocence.”). plea of possible that [from defendant’s absence re- Nor is the effect of a confession limited to verdict] turn of made no difference weight might carry jury: reached.”). result immensely Admission of a full confession comparison A between the error this complicates strategy; the defendant’s trial supports case and several classic trial errors puts give him pressure up on to the to our conclusion that Rice’s absence was not silent; remain it can foreclose alternative structural error. (such alibi) Cf. theories of the defense as an (comparing 111 S.Ct. at 1265-66 are inconsistent with the confession. A errors). trial Ful- error that case to other wrongfully admitted confession also forces minante, example, for held that the admis defendant to devote valuable trial resources fully implicating a coerced sion of confession neutralizing explaining the confession or it to merely charged crime was defendant jury, the resources that could otherwise be trial error. Id. at 111 S.Ct. at 1265. All used to create reasonable doubt as to some agreed that a of the Justices Fulminante aspect prosecution’s other of the case. The just full confession is not another defendant’s devastating effect of a full confession on the that, evidence; piece specula- it is the one item defendant’s ease is not a matter of alone, by many can form of conviction the basis tion —it is hard fact documented judicial widely removing opinions what otherwise would be a reason and discussed in law 111 at 1257 review articles.4 The nevertheless able doubt. S.Ct. Court Court, evidence, Supreme example, any give for has held that than other and that a will powerful extraordinary weight.”); a defendant’s confession has such evidence v. Collazo admonishing Estelle, (9th Cir.1991) (en effect that an instruction disregard not, to 940 F.2d 424 regard it with to a co-defendant does Fulminante); Comment, banc) (quoting Charles itself, by sufficiently protect co-defen Jr., Ogletree, J. v. Fulminante: TheHarm Arizona States, dant. Bruton v. United 88 Applying Harmless Error to Coerced Confes- (1968) (overruling 20 L.Ed.2d 476 S.Ct. sions, (1991) (not- 105 Harv.L.Rev. 167 Paoli); U.S. see also Paoli v. United 352 "overwhelming, prejudicial effect” of 294, 302-03, 1 L.Ed.2d 278 Kessel, confessions); Gordon Van coerced (1957) (Frankfurter, J., dissenting). noted As Suspect as a Source Testimonial Evidence: A above, opinions speak all of the in Fulminante Comparison English Ap- tlw and American extraordinary effect a confession can have on (1986) proaches, (citing Hastings L.J. 296, 111 S.Ct. at 1257- a trial. See 499 U.S. at robbery study that found conviction rates in (White, J., Court); opinion of the id. at higher burglary percent cases are 40 to 180 C.J., (Rchnquist, opinion of the noting, where there is a confession and "Such (Kenne Court); id. at 111 S.Ct. at 1266-67 between the existence of a confes- connections J., dy, concurring). Supreme Court's senti and the conviction rate have led some ob- sion See, widely e.g., ments arc endorsed. Lufkins servers to conclude that confessions most often (8th Cir.1992) Leapley, ("We lead to convictions and that without confessions agree Supreme that a [with Court] detailed, substantially guilty by conviction of the would be uncocrccd admission a defendant particular impaired.”). crime will tell a more about error, subject penalize tion a defendant’s this was trial decision concluded that Ohio, Doyle it. analysis. exercise harmless-error 2240, 2241-42, dram of this with the mere au- Contrast through (impeachment use defen thority that defendant supporting view post-Miranda pro dant’s violates silence due by being whatever suffers concrete harm cess); California, Griffin In two centu- absent when the returns. law, remarkably ries of state and federal case (1965) (comment on defendant’s failure to opinions possibility even few mention testify right against trial violates self- presence may cause that defendant’s incrimination). good There are reasons for thoughts when return second on prosecutor’s this: The comment the de too, Experience, shows that the verdict.5 puts extraordinary pressure fendant’s silence heart change seldom have testify. on the Whether absolutely polled, there is evidence stand, turn, defendant takes affects that, proposition when this does oc- case, theory he will defenses assert cur, presence.6 it is influenced present. Despite and the evidence will Compared staggering effect of a importance perva of this confession, supposed error here coerced trial, sive its violation has on effect juror’s trivial. far more akin to It is Doyle Court has held that errors Griffin testimony, during see United States absence are not Brecht v. Abraham structural. See (9th Cir.1995) Olano, son, 619, 628-30, (“Errors this nature are not structural (Doyle error is of a fair tri- depriving a defendant defects error); Hasting, United States al.”), at the read- the defendant’s 1974, 1979-81, testimony, Hegler, 50 F.3d at back of trial (1983) (Griffin error is trial er L.Ed.2d 96 (“[T]he this [in case] constitutional error 1477 ror); 18, California, 386 Chapman v. U.S. error.”).7 a trial is 826-27, 824, 17 L.Ed.2d 705 87 S.Ct. (1967) (same). in Fulminante an Nor is result anomaly. Supreme has held that justice The Court of criminal Another hallmark our serious, other, proving errors of equally system prosecution’s burden is analysis. beyond every a are amenable to harmless-error element of crime reason- stated, Supreme has rights a defendant able Court of the most hallowed doubt. One society system important “It free that justice criminal is is ... our our ordinary during every going his individual about right to silent before and trial. remain government proseeu- confidence that his affairs have important is this that So teaches, however, Larson, that, ("Experience following the likeli- cases: 5. Research discloses 395-96; Wade, change [during polling] is hood remote.”); ... a of mind 441 F.2d at F.2d at 911 States, 225, Okumura, 425, 848, 182 F.2d Martin v. United P.2d v. 58 Haw. 570 State ("The 1088, (5th Cir.1950) State, (1977); a 227 of defendant v. P.2d 1094 853 Lee 509 recognized long (Alaska 1973); poll established, jury is of v. course ex rel. Milewski Commonwealth Ashe, 625, (1950); standpoint, practical ex- from a but 70 A.2d 627-28 363 Pa. Levato, perience years that its has shown benefit of the v. 183 905 P.2d 567 State Ariz. effecting change or modification a defendant in a (App.1995); v. 569 A.2d Kimes United State, substantially (D.C.1989); jury’s verdict nonexis- of the tent.”); 416 So.2d 111 Davis I, Cruz, (although also Rice 757 P.2d (Ala.Crim.App.1982); see State (1976); possibility would Rice's there was Ariz.App. P.2d but vote, Morales, juror change it wasn't have caused a People 80 N.Y.2d 825, 829, (1992) "reasonably probable"). 606 N.E.2d N.Y.S.2d ("Indeed, appearance at rendition defendant's might proposition way testing practical this 7.Another little func- the verdict could serve happen experi- if 100 tion.”). imagine be to what would which lawyers burden enced were asked trial during they a criminal trial: rather bear would experience of the Our is consistent First, a coerced confession admission of See Audette v. Fifth and Seventh Circuits. (1st its verdict. returns Corp., the defendant Fishing 789 F.2d Isaksen 1986) more a handful—if Shepherd)', We than United States v. doubt Cir. —(cid:127) (7th 1978) the coerced confession. Shepherd, would take 724-25 Cir. (1946)). guilty him adjudge analysis cannot of a criminal of commence our not- We that, unlikely convincing experience, based on it is proper fense factfinder without juror change merely that a guilt certainty.” will vote of his with utmost In re 358, 364, 1068, because defendant is at return of the Winship, 397 U.S. polling. pp. verdict and Thus, 1143-44 Sand Montana, 510, 524, supra. prosecutor notes 5-7 in this case strom U.S. likely by 2450, 2459, weeding made this even less out 61 L.Ed.2d 39 the Su those who would not or could not preme Court held it was a denial of due dire, impose penalty. During the death voir for a trial court to instruct the repeatedly potential asked whether presumed that a to intend the would be able to look the defendant ordinary consequences voluntary of his ac eye This, said, return verdict death. See improperly puts tions. the Court Witt, 412, 420, 424, Wainwright v. disprove the burden on the defendant intent, 519, 105 S.Ct. 83 L.Ed.2d 841 an element of the crime. Id. at (prospective juror may be excluded for cause 2456-57. No one doubts that capital punishment shifting when his views on would proof significantly the burden of af “prevent substantially impair perfor- jury’s fects the trial and the deliberations. juror mance of his duties as a in accordance Supreme Court has nevertheless re oath.”) (quoting with his instructions and his peatedly giving held such instruc Texas, 38, 45, only error, subject Adams v. tion is to harmless- (1980)). Evatt, analysis. error See Yates v. significant It is also this was malice); (presumption Carella particular jury second time this had rendered California, case, verdict the first time five (1989) (conclu 2419, 2421, 105 L.Ed.2d 218 earlier, days at the conclusion of the intent); Rose, presumption sive time, phase jury, of the trial. The at that (presumption 106 S.Ct. at 3106-08 guilty aggravated had found Rice first malice); Risley, see also McKenzie v. 842 degree murder of each member of the Gold- Cir.1988) (en banc) 1530-31 family. mark His in the courtroom (harmless-error analysis applicable to Sand- at return of the first verdict did not deter violations). strom any jurors him; convicting it caused change none of them to waver or their authorities, minds. foregoing Based on the we con- Thereafter, through the same sat a sen- clude that Rice’s absence from the courtroom tencing hearing that lasted a little over two at the time the returned its verdict as to present hours. Petitioner was in the court- punishment, if it was constitutional error during hearing only room and was absent all, supra, see note was not structural error confession, during playback taped of his subject and is therefore to harmless-error which occurred after the start of delibera- analysis.8

tions. Ill aggravating The evidence of circumstances had, Having strong: determined that the error was Rice a cold-blooded and structural, manner, mother, here is not we must next deter violent murdered a father was, fact, home, mine whether harmless. Be and two small children in their own absolutely provocation cause this case comes to us on collateral with no and for no review, apparent butchery the error is deemed harmless unless It reason. was senseless “ injurious gratuitous it has a ‘substantial and effect of the worst sort: destruction ” determining jury’s family. Washington influence in verdict.’ of an entire Su- Brecht, preme Court noted that “Rice never indicat- any parents Kotteakos v. ed for the United remorse deaths planned 90 L.Ed. 1557 and had their deaths for months. Arave, (9lh conclusion, Hays opposite 8. To the extent the analysis, with our inconsistent Cir.1992), panel reaching hereby on which the relied in it is overruled. Moreover, present. only thing he killed children for rea- Rice been the affi- prevent them jurors rejected son other than to from identi- davit reveals is that the had I, fying him.” 757 P.2d at Rice 914. These insanity. any- Rice’s evidence of Were there with which intimate- were facts this was thing suggest petitioner’s to ly familiar.9 the courtroom at the time the verdict was any announced would had effect on the hand, mitiga- the other evidence in On jury, we would be inclined to remand for argued, as he had tion was weak: Petitioner development. Hegler, further factual trial, present- he But that was insane. (district F.3d at court exam- ed no new evidence of mental condition at reporter jurors ined court and four from crimes; the time of the he relied on same petitioner’s determine if state to error presented guilt phase, which evidence harmless). But, given was the clear-cut rec- rejected finding already the same had presented, development ord further factual guilty. him new Rice evidence would not be fruitful. After careful review family’s presented testimony was his that he surrounding the facts and circumstances history being did not have violent toward verdict, jury’s we conclude that the error others and that he had abused been injurious did here not have a substantial and attorney argued His also that he brothers. thereon, was, effect or influence and that it agree with prior had no record. We therefore, harmless. Washington Supreme “[i]n Court that this case, mitigating were rela- circumstances tively This was unpersuasive.” Id. at 915. IV therefore not situation where the decision Massachusetts, In Snyder v. and Rice’s conceiv-

was close could L.Ed. ably tipped the in favor of Justice balance Cardozo, Court, speaking for the warned us imposing a life sentence. dangers elevating procedure of too far read, jury’s After the verdict was each over substance: juror expressed polled individually as announced. his assent the verdict danger There the criminal law will juror nothing suggests any There is brought contempt gossamer ... into if uncertainty expressed hesitated or doubt possibilities prejudice to a are proffered Petitioner has about the decision. nullify pronounced by a sentence a court no evidence those court- jurisdiction in competent obedience any displayed room that law, guilty local and set the free. process pursuant least discomfort ignore Id. at at 338. We cannot verdict was received. Rice had the which the warning. hold that We a defendant’s opportunity to contact the and deter- sentence, absence at return of constitu- might have mine whether of them all, subject tional error is trial error changed their minds had he been analysis. case, In this the harmless-error He pre- was announced. when the sentence panel the error was harmless. We vacate by evidence other than an affidavit sented no opinion the extent is inconsistent here- Babcock, foreman, jury stating that Joel the panel with refer the case to the and testimony profes- a if “the of mental health proceedings. swpra. note 3 further presented ... had that David sional been panel opinion in part; is VACATED actually genuine mental Rice suffered from judgment is disorder,” the district court’s REVERSED probably have the verdict would course, This, the part; in the case is REMANDED to different. SER been panel any original three-judge for resolution of support the lends view remaining their votes had the issues. changed would crime; part degree aggra- mission of a murders were to convict Rice of first In order murder, plan more than jury or common scheme or to murder had to find one more vated victim; factors, in murders were committed aggravating defined in one Wash.Rev.Codc I, robbery burglary. Rice 757 in three: furtherance of § this case found 10.95.020. P.2d at 900. the murders to conceal com- Rice committed HAWKINS, Judge, concurring: Circuit nounce its decision absence of defendant violates fundamental and inviola- join majority opinion I agree because I rights. ble constitutional While court this that the defendant’s absence under the facts now indicates that defendant’s of this case constitute does not structural nothing meaningless pro- but error. cedure, the consensus of federal state however, persons, Prudent should avoid precedent is that reading any expansively more decision [t]he the accused is mere not a permit. than its This facts decision not does very form. It is of the essence of a crimi- broadly sanction the absence of the defen- nal trial not that the accused shall dant from of a the return verdict and wise brought face to face with the witnesses judges permit trial should loathe to ever him, against also but with his triers.... return in the absence of the defendant. And at no time the whole course of This present during defendant was trial is this more valuable than at jury’s and for the return verdict on final step pronounce when the are to Also, innocence. the members of the that decision which is to him the restore penalty jury strangers were not to the events citizen, liberty consign of a or to him to them, participation or the defendant’s be- scaffold or to a felon’s cell in state cause, law, Washington penalty prison. phase required, same hears the Commonwealth, 769, Temple Ky. punishment. evidence decides Mr. (1879); also, e.g., United States v. Villa Rice therefore confronted the same no, Cir.1987) (en him guilty; who had earlier found his ab- (sentence bane) imposed in ab- was from penalty sence the return of the sence violates fundamental constitutional verdict and it alone. Levato, rights); human State v. Ariz. fairly particular Under these limited and (review (App.1995) 905 P.2d 567 denied facts, majority properly determined (return part, granted part) deci- that the absence of the defendant here was sion in equally absence of defendant is struc- magnitude error of impact such as to tural eiTor in conviction and in return very fabric of the defendant’s trial. Cf. sentence) 771) (quoting Temple, Ky. 279, 309-10, Arizona v. 499 U.S. (citing Gagnon, United States 470 U.S. 1246, 1264-65, 111 S.Ct. 113 L.Ed.2d 302 522, 526, 105 S.Ct. (1991). denied, reh’g (1985); L.Ed.2d NELSON, Judge, D.W. Circuit whom 332; Kentucky U.S. at 54 S.Ct. at Judges BROWNING, R. Circuit JAMES Stincer, SCHROEDER, FLETCHER, and DAVID (1987)); Kimes v. Unit THOMPSON, join, dissenting: R. ed (D.C.App.1989) 569 A.2d Massachusetts, Snyder In Justice Car- 771); Temple, Ky. People dozo established state court cannot Robertson, Cal.Rptr. 48 Cal.3d violate “ranked as (en banc), denied, 767 P.2d 1109 cert. fundamental” “the traditions and con- people.” science of our reh’g denied 493 78 L.Ed. 674 926, L.Ed.2d 525 498 U.S. majority claims that state and federal case (defendant 309, has give law little believe that reason to a court right present imposi constitutional at a violates fundamental constitutional Snyder, tion of at sentence 291 U.S. when it allows a render its sentence 332-33); 54 at S.Ct. Carver v. Com I respectfully defendant’s absence. monwealth, (Ky.1953) 256 377 S.W.2d disagree. (defendant’s right to face at of time “ throughout polling Courts the nation have is re- ‘the most substantial the ”) (citation omitted). peatedly allowing held that in felony to an- accused case’

1147 FAIR AND HEARING “A JUST THE CRIMINAL “TRANSCENDS BE THWARTED WOULD PROCESS”1 BY ABSENCE”2 HIS long recognized the defen- Courts right to face process fundamental due dant’s case law also make clear State and federal deprive him life of his or will those who protecting public an interest in that the prac- is liberty. hold that a defendant To the requiring to face defen right: deprives tically the irrelevant integrity preserves and fairness of dant that the liberty is to declare him of life justice system. As D.C. American protec- no constitutional individual has “basic Curtis, in “the Circuit noted States v. United power the state. the absolute tions” before requirement that the defendant Klein, 17 Cal.App.2d 197 In re merely passed” not when does sentence (“[b]asic Dist.1961) 1 Cal.Rptr. (Cal.App. defendant; “the state has inde serve the protections to “so attach” public pendent requiring interest sen “deprives grave pronouncement” appearance tencing in order to assure the status, liberty sometimes and (D.C.Cir.1975). justice.” 523 F.2d imposition in absentia property;” of sentence Thompson Likewise, the First Circuit it defen- grounds denied reversed on that the defendant’s ab States found United rights”). “fundamental constitutional dant’s seriously sentencing sence at “affects and hu of the core constitutional Because fairness, reputation integrity public stake, imposed in a sentence man values judicial proceedings.” must be reversed. absence the defendant’s (1st Rose, Cir.1974); see Clark, See Rose State, 3106; Ala.App. Lee v. S.Ct. at see denied, 586-7, cert. 244 Ala. 13 So.2d (“some necessarily trial fun render a errors (1943)(“ 401, 13 public ‘The has an So.2d reversal”). “require damentally unfair” and every involving the life or case interest in United Circuit declared As the Tenth omitted). (citation ”) liberty of a citizen’ Villano, punish imposition of “[t]he States the most case affects ment a criminal “QUANTITATIVELY CANNOT BE liberty.” rights: human life fundamental ASSESSED”3 Cir.1987) (en banc). 1448, 1452 imposed in absentia Accordingly, a sentence nature of Bypassing fundamental reversal, the defendant’s requires since its renders interests at stake imposition of sentence is present at decision, fo- majority instead chooses to rights Con enumerated central to im- involving psychological cus on eases Fifth, and Fourteenth Sixth stitution’s upon jurors pact of the defendant “fundamental thus Amendments argument implied return of the verdict. procedure.” (citing criminal law of entire merely presence has is that the defendant’s Lewis Gagnon, 470 U.S. “gossamer” at the effect determination 370, 372, 13 S.Ct. v. United innocence, little certainly has (1892) (“dictates L.Ed. 1011 very sentencing. Yet the cases effect on humanity require presence”)); majority to show that defen- cites States, 551 A.2d also United Warrick irrelevant to outcome presence is dant’s (defendant’s (D.C.App.1988) actually its proceedings show imposed is a “fun presence when sentence significance. immeasurable Gagnon, process right under damental” due dispute that courts Villano; I some do reversal). to the defen- applied the harmless error test requires 3.Fulminante, 111 S.Ct. at 1264. Arizona 1246, 1265-66, Stincer, U.S. at Snyder, (quoting 333). (10th Cir.1990) jury dant’s absence when the State, returned its (quoting Lee v. However, verdict. important (Alaska what is is not 1973)); P.2d 1088 see also 911 F.2d used, the fact that the test was but (quoting Snyder, 291 U.S. at conclusions the court applying reached after 332). S.Ct. at explicitly The Larson court example, prior it. For to Wade v. United agreed with the Wade court that when the States any the D.C. Circuit had not made jury defendant is absent when the renders its determination as to the constitutional dimen- decision, only “deprived is the defendant issue, sions of this 441 F.2d process right of his psychologi- due to exert a (D.C.Cir.1971), applied and so the court upon jury,” cal influence “ but there is also analysis harmless error to determine wheth- ‘a possibility jury reasonable spec- any er there was possibility reasonable adversely ulated to the defendant about his prejudice. Id. at 1050.4 The Wade court ” absence from the courtroom.’ 911 F.2d at jury’s ruled that the verdict had to be re- Wade, 1050). (quoting 441 F.2d at versed, because the effect of a defendant’s Levato, Kimes, also 905 P.2d at 570 jury absence when a renders its verdict is 111; Lee, 1094); 569 A.2d at 509 P.2d at impossible to calculate. See Kimes, (“(t)he 569 A.2d at 111 psychological (unlike U.S. at 111 S.Ct. at 1264-65 eye-to-eye influence of the contact between error, “quan- structural error cannot be juror significant titatively assessed” and therefore defies enough juror change cause a his or her analysis). harmless error The court deter- pressure mind when outside mined to hold the defendant’s absence to room;” defendant’s absence “could cause ad- Wade, speculation”) (citing verse 441 F.2d at speculative. harmless would be too It 1050; Lee, 1094). 509 P.2d at might would assume reconstruct what have eventuated present, had he been longA prior tradition of cases to Wade and truly when that cannot be reconstructed testify unquantifiable Larson also to the im- degree certainty with a essential pact of a on as possibility avoid the preju- reasonable they render example, their decision. For dice. Supreme Alaska Court in Lee noted that the Wade, People F.2d at see also regarded defendant’s absence “cannot be Williams, 186 A.D.2d 587 N.Y.S.2d 704 harmless,” since the “psychological distinc- (1992) (defendant’s absence at verdict vio- jury poll tion” between a with the defendant longstanding lates a right” “fundamental un- present and one in the defendant’s absence Snyder reversal); der requires Shaw Lee, “is not a minor one.” 509 P.2d at 1093. State, (defendant’s (Del.1971) 282 A.2d 608 Likewise, the Milewski court observed that absence at verdict violates fundamental con- right stitutional requires (t)he reversal under jurors; words upon ‘Prisoner look Snyder). (sic) upon prisoner’ look (citation omitted) great significance, Not Other courts have followed the Wade prisoner has the to have a court’s reasoning. The Tenth Circuit Lar- polling very presence but his Tansy son v. found the defendant’s ab- may move some of the to have com- jury’s sence at the return of the verdict “ ” passion on him.... In our examination violates ‘substantial’ due question we single have not since the found “defendant’s mere jurisdiction presence, aside from which the assistance defen- absence of a de- counsel, dant given felony could have fendant in a would case from the court- provided have been useful and would have room at the time the renders its ver- more than a shadow of benefit.” 911 ... dict is not a fatal error. majority Another case from which the "voluntarily mistak- cause Friedman had waived his enly finding infers a of trial error is United States present” by leaving the courthouse Friedman, (9th Cir.1979). area at the time the verdict was to be rendered. question The court did not have to reach the whether a fundamental involved, bc-

H49 says, “I to look at the Milewski, Garen had defen- see also Diaz 70 A.2d 442, 454, knowing my personal eye, in the that dant United (defendant 250, 254, feelings right.” has true L.Ed. 500 Sixth were and trial, right “es- present to be Amendment Death,” Song, “Weighing Elaine Conn. verdict”); pecially at the rendition L.Trib., Apr. at 1. (defendant Ky. “a Temple, at 771 has only may present to that he “THE AND TRADITIONS CONSCIENCE nothing is or omitted which tends done that OF OUR PEOPLE”6 benefit of prejudice, his to the to but Arave, joined Hays In the Ninth Circuit in his exert influence whatever holding in a throughout the land courts favor”). his has a fundamental constitutional defendant THAN A “MORE SHADOW"5 present jury pronounces the to be when felony in trials. 977 F.2d 475 its sentence presence” If “mere of the defendant the (9th Cir.1992). Nothing Hays the court said jurors significant effect on has new; pres- the effect of the defendant’s trial, impact of the defen- phase of the jurors, inability quantify the upon ence to jurors greater at presence on is even dant’s absence, of impact his and abhorrence of especially de- sentencing, when must sentencing concep- in to democratic absentia impose the sentence. to death cide whether justice resounding tions of are themes majority Opinion itself testifies to this throughout and state case law. federal (the dire, “during hearing great in being merely as his interest the defendant is one (cit- stage”) determining quantifiable piece at among many. of evidence Gardner, 430 U.S. at 97 S.Ct. at majority’s ruling in this case is the Kimes, 1204-05); 111; 569 A.2d at Powell v. triumph procedure ultimate over sub- Commonwealth, (Ky. 346 S.W.2d person stance: irrelevant to now 1961) (defendant’s jury’s imposi- absence at process. nightmare This is the world of The requires tion of sentence of sen- reversal Trial; justice. it is not American Like Josef tence; in absentia violates funda- K, Lewis Rice David was sentenced to death mental Fourteenth Amendment and is absentia, and, K, go in like Rice will Josef case) per prejudicial capital se grave asking, judge “Where is the whom 771). Temple, Ky. at Kafka, I never seen?” Franz Der Pro- Today, Hays and in this court overrules so (1935,1979). zess 194 doing history. the voice of Court silences

after court has ruled that the defendant’s renders its decision rights

violates fundamental constitutional requires majority reversal. The now

tells us that instead of the consensus case

law, hypothetical prefer- we follow the must imaginary lawyers.

ences of a hundred When Justice told us Cardozo to look “the America, UNITED STATES of people,” traditions and conscience of our Plaintiff-Appellant, Snyder, at is not what had mind. GOMEZ-RODRIGUEZ, Rene Hector “AN ESSENTIAL CONDITION Defendant-Appellee. DUE OF PROCESS”7 No. 95-10114. wrote, “criminal,

As Cardozo Justice crime, shocking however is not to answer Appeals, United States Court of liberty for it with of life till forfeiture tried Ninth Circuit. conformity convicted with law.” Peo- Argued and Submitted Jan. 1996. ple Moran, 246 N.Y. N.E. rights kept “be “Fundamental” must Decided Feb. 1996. inviolable, crushing inviolate and however pressure proof.” of incriminating Snyder, 338.

Today majority declares that

Ninth principle Circuit established longer

American law no holds true. majority’s decision will have another on felony

unavoidable effect sen- trials and

tencing decades, hearings. jurors For they

known that would have to look into the

eyes person whose in then- fate was

hands. This inevitable moment of truth

forced think seriously wheth- about good deprive

er could conscience

fellow his life liberty. citizen of Now longer have to tremble

thought facing the they judge, man since Stincer, 54 S.Ct. at 482 U.S. at S.Ct. at notes voir when it Hays, F.2d at 481. potential jurors repeatedly prosecutor) asked they able look the de- whether would be to to have about Even ono were doubts eye in the return a verdict fendant present imposition at the of a Washington prosecutor death.” As another sentence, due non-capital fundamental noted, presence of the defendant at sen- stages at critical tencing effect on the out- has undeniable unquestionably applies to death look a defendant come: “Jurors Mississip- penalty proceedings. Clemons verdict; real human eye and return pi, 494 every step beings are involved (1990) (“capital sentencing Scattarella, way.” Christy “Prosecutor satisfy dic- proceedings must of course Murderer,” Triple to See Execution Wants Clause”) (citing the Due Process tates of Times, 6,1994, at Bl. May Seattle Florida, 349, 358, 97 Gardner not the ones Washington are (plu- affected the defendant’s (sentencing stage” rality opinion) “critical lawyer A they pronounce sentence. proceedings penalty of criminal death Attorney Jersey office has cases)). General’s New pronouncement death juries traditionally have hard observed that most moment in the is the solemn sentence “(i)t’s penalty, since imposing defendant; the death time jurors and lives of both the penalty; in favor of the death thing to be no facing one say person death eye another look people proceedings it’s to the connection ” Jeffrey Kanige, say, die.’ deciding say ‘You should charged is to fate Having Slight Villano, “Death Amendment Seen longer human. we are Effect,” N.J.L.J., (“dictates Nov. de- humanity” demand Division). Appellate Deputy imposition Chief presence, since “the fendant’s Likewise, jurors recalled after as Connecticut criminal case affects punishment in a sentencing hearing, rights: life fundamental human most State, liberty”); Harris v. So.2d listening their difficult time had a (“the capital defen- (Ct.Cr.App.Ala.1992) Zin remembers read. Dal being decision attending interest dant’s shaking. Í05, 54 S.Ct. at 332. Larson, at 395.

Case Details

Case Name: David Lewis Rice v. Tana Wood, Superintendent, David Lewis Rice v. Tana Wood, Superintendent

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 20, 1996

Citation: 77 F.3d 1138

Docket Number: 93-99011, 93-99012

Court Abbreviation: 9th Cir.