Boardman v. Estelle
| Citation | 957 F.2d 1523 |
| Decision Date | 11 March 1992 |
| Docket Number | No. 90-55238,90-55238 |
| Parties | Gary Stewart BOARDMAN, Petitioner-Appellant, v. Wayne ESTELLE, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Phillip A. Trevino, Los Angeles, Cal., for petitioner-appellant.
David F. Glassman, Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.
Appeal from the United States District Court for the Central District of California.
Before NORRIS, HALL and TROTT, Circuit Judges.
The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.
Gary Boardman asserts he was denied due process of law because the state trial court refused to allow him to speak at his sentencing hearing after he affirmatively requested to do so. We agree that due process requires criminal defendants be permitted to allocute before sentencing if they so request, and we remand for consideration of whether the error in this case was harmless.
Boardman pleaded guilty to four counts of oral copulation and seven counts of lewd conduct, each involving children under 14 years of age. During the sentencing hearing, the judge specifically mentioned a letter received from Conrad N. Perle, the father of one of the victims, noting:
It was an illuminating letter that I read that shows the type of damage that [Boardman has] done in matters of this nature. It creates ongoing problems for so many people. And, so, I guess I would say that ... it was a letter that did have its effect upon me and that it would be a letter that's expressed the problems created by what went on between the defendant and young Mr. Perle.
Before making these comments, the judge stated that he did not know whether Boardman's defense counsel had seen the letter. Later in the hearing, Boardman asked through his counsel to address the court. The court denied the request, stating
Boardman appealed his sentence, arguing he was denied due process because he was not permitted to respond personally to Mr. Perle's letter. The California Court of Appeal rejected this argument in an unpublished opinion, holding that Boardman's inability to address the court was "inconsequential" in light of other mitigating evidence and argument presented to the sentencing judge by Boardman's counsel. Relying on California case law, the court held that a trial court has discretion to decide whether a criminal defendant represented by counsel should be allowed to speak prior to sentencing. 1 The court further held that, in this instance, the trial court's failure to allow Boardman to speak did not constitute a due process deprivation. The California Supreme Court affirmed without opinion.
Boardman then filed a petition for habeas corpus in the district court, asserting again he was denied due process when the trial court refused his request to speak. In his traverse to the court, filed as a supplement to his habeas corpus petition, Boardman asserted that he was harmed by the court's refusal because he had intended to rebut information offered by parents of the victims. He stated in the traverse:
One very important consideration is that the parents of the victims were expressly invited to address the court and several individuals availed themselves of this opportunity. Consequently, by silencing this petitioner, the Court deprived him of the opportunity to have his voice heard, either in answer to any accusations or to personally plead for leniency.
(emphasis in original).
Although the magistrate properly framed the issue as whether a defendant who is represented by counsel in a state court proceeding has a fundamental right to speak in mitigation of his sentence, he found no such right. The magistrate concluded that Boardman was asking for an extension of Fed.R.Crim.P. 32(a)(1)(C), which requires federal judges to ask criminal defendants if they wish to address the court. He held there was no basis for extending the federal rule to state court proceedings. He also found no prejudice to Boardman, holding that in light of the "seriousness of the offenses, the harm to the victims, the danger to the community, the facts offered to the trial judge in mitigation of sentence, and the effectiveness of Petitioner's attorney, nothing suggests that anything Petitioner could have personally said would have produced a lesser sentence."
The district court adopted the magistrate's findings and recommendations and dismissed Boardman's habeas corpus petition. The court also denied his subsequent request for a certificate of probable cause, in which Boardman again argued he had been denied due process through denial of allocution. The court refused to consider Boardman's argument that he had been prejudiced by his inability to respond to damaging letters from victims' family members. The court found this argument not properly presented because it had not been raised in the habeas corpus petition or in the traverse. Boardman filed this timely appeal.
As a preliminary matter, we must determine whether the district court erred in finding that Boardman did not properly raise the issue of his inability to respond to the Perle letter. California asserts that Boardman now raises "[f]or the first time in these proceedings" the claim that "he could have refuted a damaging letter presented to the state sentencing court." We are at a loss to understand California's argument as well as the district court's ruling. In his traverse, Boardman clearly stated that because he was not permitted to speak at sentencing, he could not rebut information presented to the court by the victims' parents. In his request for probable cause certification, Boardman again raised the issue. Because Boardman did timely and repeatedly raise this issue, we conclude the district court erred in refusing to consider his claim.
We now turn to the primary issue in this case: whether a criminal defendant is denied due process if the trial court denies his request to address the court prior to sentencing. 2 Finding no such right, the magistrate below could identify no basis for a right of allocution other than the Federal Rules of Criminal Procedure, which do not apply to state court proceedings. We believe the lower court erred both in overlooking the ancient origins of this common-law right and in failing to recognize the continuing importance of the interests protected by affording the defendant the opportunity to speak on his own behalf. 3 Accordingly, we reverse.
Sentencing is a critical stage of the criminal process, Mempa v. Rhay, 389 U.S. 128, 133-34, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967), to which Constitutional due process guarantees apply. United States v. Lundien, 769 F.2d 981, 986 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986). The requirements of due process "cannot be ascertained through mechanical application of a formula," but are determined by " 'history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.' " Groppi v. Leslie, 404 U.S. 496, 500, 92 S.Ct. 582, 585, 30 L.Ed.2d 632 (1972) (quoting Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162-63, 71 S.Ct. 624, 643-44, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). In the context of criminal law, the backbone of that democratic faith is the right of a criminal defendant to defend himself against his accusers; and it has long been recognized that allocution, the right of the defendant to personally address the court, 4 is an essential element of a criminal defense. Specifically, the right of allocution "contemplates an opportunity for the defendant to bring mitigating circumstances to the attention of the court." Sherman v. United States, 383 F.2d 837, 839 (9th Cir.1967).
Denial of the "traditional right of a criminal defendant to allocution prior to the imposition of sentence," Groppi, 404 U.S. at 501, 92 S.Ct. at 586, was recognized as requiring reversal as early as 1689. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961); Del Piano v. United States, 575 F.2d 1066, 1069 (3rd Cir.1978). When the right of allocution matured under English common law, however, a criminal defendant was not permitted counsel and could not testify on his own behalf. State v. Carr, 172 Conn. 458, 473, 374 A.2d 1107, 1115 (1977). The defendant's allocution before sentencing was his only opportunity to address the court. Even though the form of criminal trials has changed significantly over time, the interests supporting the right of a defendant personally to address his sentencer have remained constant. In this regard, the Supreme Court found in 1961 that allocution is still a vital part of the sentencing process.
We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century--the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation.
Green, 365 U.S. at 304, 81 S.Ct. at 655. 5
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