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Three Strikes Criminal Defense: Conviction Reversed after Trial Court Error

Posted by Dmitry Gorin | Mar 19, 2007 | 0 Comments

A trial court violated the constitutional rights of a man it later sentenced to 40 years to life in prison for throwing billiard balls during a bar fight when it prevented him from impeaching the prosecution's key trial witness for lying under oath, the Ninth U.S. Circuit Court of Appeals ruled yesterday. Concluding that a reasonable jury might have received a "significantly different impression" of a witness whose testimony was crucial to establishing the defendant's intent had it known the witness's claim that he was not on probation was false, Judge Jay S. Bybee wrote that Michael Slovik was entitled to habeas corpus relief because the violation of Slovik's Sixth Amendment right to confront witnesses against him was not harmless error. Slovik was drinking at a bar named Gusser's Carousel in El Cajon, outside of San Diego, at approximately 1 a.m. in 1998 when a fight occurred during which he allegedly threw three billiard balls at a bartender and other patrons after being told to leave. He was tried on two counts of assault with a deadly weapon - the balls - and by means of force likely to produce great bodily injury, and two counts of battery. However, as noted by Bybee, "[t]he various witnesses and participants - as the State points out, indisputably not picked from a Sunday school choir - offered conflicting testimony." Among others, the prosecution relied at trial on the testimony of a patron, Mark Featherstone, who said that Slovik had been ejected after doing backflips throughout the bar, and that Slovik had thrown the balls at Featherstone's face while chasing him around a pool table. When Featherstone answered "no" when asked if currently on probation, Slovik's counsel - in possession of a form establishing that Featherstone had been placed on five years' probation for driving under the influence of alcohol - sought to impeach him, but the prosecution objected, and the trial court agreed that questioning Featherstone about his probationary status would be too time consuming. Ultimately convicted of one count of assault with a deadly weapon, one count of battery, and a reduced charge of simple assault, Slovik was sentenced to 40 years to life as a result of the California three-strikes law and other sentencing enhancements. The California Court of Appeal later reduced his sentence to 35 years to life, but upheld his convictions and rejected a state habeas petition. However, on Slovik's appeal from a similar ruling by U.S. District Judge Roger T. Benitez of the Southern District of California denying Slovik's federal habeas petition, Bybee wrote that the California Court of Appeal's decision upholding the trial court's limitation on use of the impeachment evidence was an unreasonable application of clearly established law. "The evidence that Featherstone was placed on five years' probation for driving under the influence was not being proffered to establish that Featherstone was unreliable because he was on probation, but rather to establish that Featherstone was unreliable because he had lied about being on probation," Bybee said. "It is clear to us that the jurors might have formed a significantly different impression of Featherstone's credibility if they had heard cross-examination showing that Featherstone was willing to lie under oath." Bybee similarly reasoned that the error was not harmless beyond a reasonable doubt because the jury - had it concluded that Featherstone was willing to lie under oath - could have discounted his testimony, and because Featherstone's testimony was crucial to establishing that Slovik intended to hit people with the billiard balls, rather than throw them aimlessly. Tagged as: faq

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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