Oct. 7, 2009 Oral Arguments
Thank you for all of the love and support you have sent our way. October 7th was hard; in many ways taking us back to the time of the first trial so many years ago. In a courtroom, regardless of which side you are on, and unless you are a judge or an attorney, there is little to do but sit and listen. So many times you want to leap up and yell, "That's wrong because of this and this and this!" but you can't. You must leave it in their hands.
The best way to update you on the actual day in court is to share the many questions we have received and the answers we have given:
What was this day in court for?
The appeals filed for Brandon Hein, Tony Miliotti, Jason Holland and Micah Holland have reached the level of the United States Court of Appeals for the Ninth Circuit. Up until now, they have been reviewed by the state appellate courts (where cases are known to have a 3-5% success rate). Once an appeal is filed, the attorneys can request the opportunity to present Oral Arguments to the judges (3 judges were assigned at this level). This request is not always granted but it was granted this time and that is a positive because it gives the attorneys the opportunity to answer the judge's questions and give additional emphasis to the strongest issues for appeal.
Was Brandon's attorney the only one there?
We have also been asked if Brandon would be present. The answer to both questions is no. Brandon, Tony, Jason and Micah were not allowed to be there. Attorneys for each of the parties to the appeal were present (the parties being Brandon, Tony, Jason and Micah as petitioner-appellants, and the state, represented by the Attorney General, as the respondent-appellee). However, because each side (rather than each party) was limited to 15 minutes of argument, it was decided among the attorneys for each of the petitioners that one attorney would address the court for all of them as to all of the issues that were commom to all of them, and Brandon's lawyer was the lawyer who argued for all of them. This is a common practice in such cases because the judges usually ask questions and switch between issues and it becomes very frustrating to the judges (and laywers) if every two or three minutes they have to stop and start with another lawyer. Tony's lawyer also presented argument on his behalf because he had a separate claim that only applied to him. A lawyer from the Attorney General's office presented argument on behalf of the state. After the state's lawyer argued, rebuttal argument was presented by Brandon's lawyer (on behalf of all the petitioners) and Tony's lawyer (as to his separate claim). Although the time limit was set at 15 minutes for each side, for a total of 30 minutes, the arguments actually lasted about 90 minutes because the judges had so many questions.
We have heard the courtroom was full. Who was there?
The courtroom had pew seating and was able to hold 150 to 200 people. It is the largest of the three courtrooms at the District Court in Pasadena.
This is who attended:
- The family members of Brandon, Tony, Jason and Micah were there as well as many of our dear friends and supporters. This injustice is so apparent that many are compelled to become actively involved. Those who could possibly be there, stood with us.
- Mr. and Mrs. Farris were also there with family and friends.
- Also present that day were students from ITT Tech criminology classes. We speak to schools often when these goals: to help students to know about the Felony Murder Rule and to understand how it is used and abused; to help them understand that they will shape the future of the justice system - one way or another; to help them understand that the decisions they make about how they conduct themselves today will impact all of the people who love them; and most of all to try to keep families and children from this nightmare of loss, whether from death or incarceration.
What are the grounds for appeal?
There were four separate and distinct legal claims that were presented as grounds for why the petition should be granted: (1) Michael McLoren's provided false testimony as to (a)whether he had immunity (that is whether he could be prosecuted based on what he told the police and testified to at the trial) and (b) why he was testifying for the prosecution given that to do so he had to admit he possessed marijuana and sold marijuana previously); (2) the prosecution failed to disclose evidence favorable to the defense, consisting of (a) a letter granting McLoren immunity; and (b) the detective's notes of an interview of a witness who said she had seen the boys before they went to McLoren's fort and that they had said they were going to "buy" marijuana; (3) misconduct by the prosecution, which included asking improper questions, telling the jury the defense lawyers were dishonest and telling the jury they should believe McLoren because by testifying he had exposed himself to criminal liability - meaning he could be prosecuted for what he said during his testimony, which the prosecution knew was false because they had given him written immunity; and (4) cumulative error, meaning that even if any of the first three claims was not sufficient by itself to have caused a constitutionally unfair trial, the cumulative impact of the individual errors resulted in a constitutionally unfair trial. The claim that seemed to concern the judges the most, and which upset them the most, was the misconduct, especially the false statement to the jury that McLoren had exposed himself to criminal liability. At the same time, however, it appeared that the judges were not convinced this misconduct made a difference in the outcome of the trial, so that even if it was wrong for the prosecution to do it, that did not justify overturning the jury's verdict.
How did it go?
What is written above is from a legal perspective. From the perspective of family and Brandon's supporters, it was more like this: The judges seemed harsh in their questioning of our attorneys and made some statements that made it seem like they had made up their minds against us. That was painful to sit through. However, when the attorney from the Attorney General's office stood at the podium, they were also very hard on her. Each time she tried to say that the prosecutors had made errors they corrected her and said, "Those were not errors. That was misconduct."
What are the possible outcomes?
The three judge panel can either (1) "affirm" the decision of the district court denying the petition for a writ of habeas corpur; or (2) "reverse" the decision of the district court and order that the petition should be granted. If the court reversed the district court and ordered the petition to be granted, it would mean that the state would either have to retry them within a specified time period, or release them. There is a third possible, but unlikely, outcome, which would be for the court of appeals to return the cases to the district court for a hearing about a question of fact, e.g., whether the witness actually told the detective the boys said they were going to "buy" marijuana. In that circumstance, the court would not affirm or deny the district court, but instead remand the case and order the district court to make a new decision on the petition after conducting a hearing.
What happens now?
If we have learned one thing in this process, it is that we have little or no ability to guess the outcome. Now we wait. It will probably take from 2-6 months before they give their decision. If the panel of three judges affirms the district court, a petition for rehearing may be made to the full Ninth Circuit Court of Appeals; conversely, if the panel were to reverse the district court, the state could petition for a rehearing. Rehearings, however, are rarely granted.
The bottom line:
All those wonderful prayers and thoughts for a good outcome that you have been sending our way...they are needed now more than ever.
Gene and Janice Hein
The best way to update you on the actual day in court is to share the many questions we have received and the answers we have given:
What was this day in court for?
The appeals filed for Brandon Hein, Tony Miliotti, Jason Holland and Micah Holland have reached the level of the United States Court of Appeals for the Ninth Circuit. Up until now, they have been reviewed by the state appellate courts (where cases are known to have a 3-5% success rate). Once an appeal is filed, the attorneys can request the opportunity to present Oral Arguments to the judges (3 judges were assigned at this level). This request is not always granted but it was granted this time and that is a positive because it gives the attorneys the opportunity to answer the judge's questions and give additional emphasis to the strongest issues for appeal.
Was Brandon's attorney the only one there?
We have also been asked if Brandon would be present. The answer to both questions is no. Brandon, Tony, Jason and Micah were not allowed to be there. Attorneys for each of the parties to the appeal were present (the parties being Brandon, Tony, Jason and Micah as petitioner-appellants, and the state, represented by the Attorney General, as the respondent-appellee). However, because each side (rather than each party) was limited to 15 minutes of argument, it was decided among the attorneys for each of the petitioners that one attorney would address the court for all of them as to all of the issues that were commom to all of them, and Brandon's lawyer was the lawyer who argued for all of them. This is a common practice in such cases because the judges usually ask questions and switch between issues and it becomes very frustrating to the judges (and laywers) if every two or three minutes they have to stop and start with another lawyer. Tony's lawyer also presented argument on his behalf because he had a separate claim that only applied to him. A lawyer from the Attorney General's office presented argument on behalf of the state. After the state's lawyer argued, rebuttal argument was presented by Brandon's lawyer (on behalf of all the petitioners) and Tony's lawyer (as to his separate claim). Although the time limit was set at 15 minutes for each side, for a total of 30 minutes, the arguments actually lasted about 90 minutes because the judges had so many questions.
We have heard the courtroom was full. Who was there?
The courtroom had pew seating and was able to hold 150 to 200 people. It is the largest of the three courtrooms at the District Court in Pasadena.
This is who attended:
- The family members of Brandon, Tony, Jason and Micah were there as well as many of our dear friends and supporters. This injustice is so apparent that many are compelled to become actively involved. Those who could possibly be there, stood with us.
- Mr. and Mrs. Farris were also there with family and friends.
- Also present that day were students from ITT Tech criminology classes. We speak to schools often when these goals: to help students to know about the Felony Murder Rule and to understand how it is used and abused; to help them understand that they will shape the future of the justice system - one way or another; to help them understand that the decisions they make about how they conduct themselves today will impact all of the people who love them; and most of all to try to keep families and children from this nightmare of loss, whether from death or incarceration.
What are the grounds for appeal?
There were four separate and distinct legal claims that were presented as grounds for why the petition should be granted: (1) Michael McLoren's provided false testimony as to (a)whether he had immunity (that is whether he could be prosecuted based on what he told the police and testified to at the trial) and (b) why he was testifying for the prosecution given that to do so he had to admit he possessed marijuana and sold marijuana previously); (2) the prosecution failed to disclose evidence favorable to the defense, consisting of (a) a letter granting McLoren immunity; and (b) the detective's notes of an interview of a witness who said she had seen the boys before they went to McLoren's fort and that they had said they were going to "buy" marijuana; (3) misconduct by the prosecution, which included asking improper questions, telling the jury the defense lawyers were dishonest and telling the jury they should believe McLoren because by testifying he had exposed himself to criminal liability - meaning he could be prosecuted for what he said during his testimony, which the prosecution knew was false because they had given him written immunity; and (4) cumulative error, meaning that even if any of the first three claims was not sufficient by itself to have caused a constitutionally unfair trial, the cumulative impact of the individual errors resulted in a constitutionally unfair trial. The claim that seemed to concern the judges the most, and which upset them the most, was the misconduct, especially the false statement to the jury that McLoren had exposed himself to criminal liability. At the same time, however, it appeared that the judges were not convinced this misconduct made a difference in the outcome of the trial, so that even if it was wrong for the prosecution to do it, that did not justify overturning the jury's verdict.
How did it go?
What is written above is from a legal perspective. From the perspective of family and Brandon's supporters, it was more like this: The judges seemed harsh in their questioning of our attorneys and made some statements that made it seem like they had made up their minds against us. That was painful to sit through. However, when the attorney from the Attorney General's office stood at the podium, they were also very hard on her. Each time she tried to say that the prosecutors had made errors they corrected her and said, "Those were not errors. That was misconduct."
What are the possible outcomes?
The three judge panel can either (1) "affirm" the decision of the district court denying the petition for a writ of habeas corpur; or (2) "reverse" the decision of the district court and order that the petition should be granted. If the court reversed the district court and ordered the petition to be granted, it would mean that the state would either have to retry them within a specified time period, or release them. There is a third possible, but unlikely, outcome, which would be for the court of appeals to return the cases to the district court for a hearing about a question of fact, e.g., whether the witness actually told the detective the boys said they were going to "buy" marijuana. In that circumstance, the court would not affirm or deny the district court, but instead remand the case and order the district court to make a new decision on the petition after conducting a hearing.
What happens now?
If we have learned one thing in this process, it is that we have little or no ability to guess the outcome. Now we wait. It will probably take from 2-6 months before they give their decision. If the panel of three judges affirms the district court, a petition for rehearing may be made to the full Ninth Circuit Court of Appeals; conversely, if the panel were to reverse the district court, the state could petition for a rehearing. Rehearings, however, are rarely granted.
The bottom line:
All those wonderful prayers and thoughts for a good outcome that you have been sending our way...they are needed now more than ever.
Gene and Janice Hein
posted by Gene and Janice Hein at 8:55 AM
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