Akins v. Cardwell
| Citation | 500 F.2d 47 |
| Decision Date | 21 June 1974 |
| Docket Number | No. 73-1449,73-1449 |
| Parties | Van AKINS et al., Petitioners-Appellants, v. Harold J. CARDWELL, Warden, Arizona State Prison, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
B. Michael Dann (argued), of Treon, Warnicke & Dann, Phoenix, Ariz., for petitioners-appellants.
William J. Schafer, III, Chief Counsel, Crim. Div., Phoenix, Ariz. (argued), Gary K. Nelson, Atty. Gen., for respondent-appellee.
Before MERRILL and DUNIWAY, Circuit Judges, and FERGUSON, 1 District judge.
In one respect-- the rereading of the court's instruction to the jury at the jury's request and in the absence of the defendants, the facts of this case are almost a carbon copy of those in Bustamante v. Eyman, 9 Cir., 1972, 456 F.2d 269 (Bustamante I). In Bastamante, after our remand, a hearing was held at which testimony was received as to what happened when a tape recording of the court's instructions was played back to the jury. On the basis of that evidence, the trial judge concluded that the presumption of prejudice had been overcome. We have now upheld that decision. Bustamante v. Cardwell, 9 Cir., 1974, 497 F.2d 556 (1974). (Bustamante II) In the case at bar, such a hearing was held before the trial court denied the present petition for a writ of habeas corpus. The State was unable to produce any record, or any testimony, as to what occurred. Thus, as in Bustamante I, there is nothing to overcome the presumption that the error was prejudicial. Bustamante II is not in point. Hence, the writ must issue unless the State grants the appellants a new trial.
Petitioner Van Akins was 17 years old at the time of the crime. He claims that when the juvenile court relinquished its jurisdiction he did not receive the due process to which he was entitled under Kent v. United States, 1966, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Harris v. Procunier, 9 Cir., 1974, in banc, 498 F.2d 576 (1974), we have held that Kent is not retroactive. Van Akins' claim is rejected on the authority of Harris.
Appellants raised four other claims of constitutional error in their petitions before the district court. Because it is unlikely that any of the alleged errors will occur at a new trial, we need not reach these claims. However, we assume that before the appellants' out-of-court statements made to state law enforcement officers are introduced in a new trial, the appellants will be given the constitutionally required voluntariness...
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U.S. v. Ford
...of the reading, but he has not claimed before us that the district court failed to give him such notice.28 Akins v. Cardwell, 500 F.2d 47, 47 (9th Cir. 1974) (per curiam), suggests that a presumption of prejudice arises when any portion of a trial occurs during a defendant's or his counsel'......
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...Because it is unlikely that this alleged error will occur at a new trial, the Court will not decide this claim. See Akins v. Cardwell, 500 F.2d 47 (9th Cir.1974). V. Petitioners have met their burden of establishing purposeful discrimination by the Wayne County assistant prosecutor in his u......
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Huffman v. State of Missouri
...to a procedure such as existed in Missouri in 1946, those decisions have not been held to apply retroactively. See Akins v. Cardwell, 500 F.2d 47 (9th Cir. 1974); Harris v. Procunier, 498 F.2d 576 (9th Cir. en banc 1974); see also Mordecai v. United States, 137 U.S.App. D.C. 198, 421 F.2d 1......
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U.S. v. Gagnon
...substantial rights shall be disregarded." This circuit stated in United States v. Ford, 632 F.2d at 1379 n. 28: Akins v. Cardwell, 500 F.2d 47, 47 (9th Cir.1974) (per curiam), suggests that a presumption of prejudice arises when any portion of a trial occurs during a defendant's or his coun......