|Photo Courtesy of Publik15|
In Theike v. Kernan, a jury convicted the petitioner of killing his mother and step-father. The prosecution alleged this was because Mr. Theike was upset because his mother allowed his car to be repossessed. The defense argued he was insane. The jury believed the prosecution and convicted the petitioner of two counts of first degree murder and found him to be sane. Mr. Theike complains of a number legal errors including inconsistent evidentiary rulings by the trial court.
There is some debate about whether unevenly applied rules result in justice. On one hand, some ethicists argue that justice cannot be obtained where rules are applied unevenly. Wardius v. Oregon (U.S. 1973) ("the Due Process Clause... does speak to the balance of forces between the accused and his accuser.") On the other hand, Louis P. Pojman writes in Contemporary Debates in Applied Ethics, that uneven justice is the best one can hope for and the alternative is anarchy.
Here, Mr. Theike complains that the California Rules of Evidence prohibit a proponent of an expert from asking about the material upon which the expert based his or her opinion. However, the opposing party on cross examination, has wide latitude to ask about this material. In the underlying trial, "Respondent and the state appellate court recognize that 'during the trial, the court occasionally applied its rulings on the admissibility of hearsay inconsistently.'" Judge Jeremy Fogel stated that the amount of hearsay which a trial judge chooses to admit is a legal gray area and does not demonstrate an "unreasonable application" of the law. He denied the petition for habeas corpus.
In Packer v. Hense, a Santa Clara County jury convicted Mr. Packer of second degree robbery for driving the getaway car after a liquor store robbery. Among other things Mr. Packer complained that a San Jose Police Officer testified that Mr. Packer was under a "parole hold" which he complains is a prejudicial statement that deprived him of due process. Judge William Alsup stated the United States Supreme Court 'has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.' Holley v. Yarborough, (9th Cir. 2009). Therefore he denied the petition for habeas corpus.
In Frazier v. Adams, a California jury convicted the petitioner of 21 counts of of lewd and lascivious acts on a child under the age of 14 for sexually assaulting a girl in his care over a period of three years and the trial judge sentenced him to 225 years in prison. He complains this sentence is cruel and unusual punishment in violation of the Eight Amendment. Judge Lucy Koh stated that Mr. Frazier's conduct was sufficiently serious to warrant that sentence. This raises the debated issue of whether a non-capital sentence can ever be unconstitutional. The ABA Journal reports:
According to [Justice John Paul] Stevens, [Justice Antonin] Scalia said the Eighth Amendment does not require the punishment to fit the crime. "Under his reasoning, since imprisonment is not categorically cruel or unusual, a life sentence for a parking violation would not have violated the Eighth Amendment," Stevens said in the speech (PDF).On a similar thought Judge Koh strung together a series of cases that imparted long sentences for seemingly small crimes.
See Norris [v. Morgan (9th Cir. 2010)] (conducting a de novo review and concluding that a sentence of life without the possibility of parole was not grossly disproportionate to a crime of first degree child molestation where the child was five-years old, the touching occurred over the child’s clothes for “a couple of seconds,” and appellant had a previous conviction of first degree child molestation); cf. Ewing v. California, (U.S. 2003) (upholding sentence of 25 years to life under three strikes law for stealing three golf clubs); Lockyer v. Andrade, (U.S. 2003) (upholding sentence of 25 years to life under three strikes law for petty theft convictions); Nunes v. Ramirez- Palmer, (9th Cir. 2007) [cert. denied] (upholding sentence of 25 years to life for the underlying offense of petty theft with a prior conviction after finding petitioner’s criminal history was longer, more prolific, and more violent than petitioner in Andrade, who suffered a harsher sentence); Taylor v. Lewis, (9th Cir. 2006) (upholding sentence of 25 years to life with possibility of parole for possession of .036 grams of cocaine base where petitioner served multiple prior prison terms and his prior offenses involved violence and crimes against a person).I modified the citations and added the hyperlinks. Judge Koh denied the petition for habeas corpus.
Post a Comment