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Scrutinize jury instructions with a fine-tooth comb

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Bill of Rights. (From the public domain.)

In jurisdictions where the judge instructs the jury on the law before closing trial arguments are made, it is tempting for lawyers to focus on putting the finishing touches to their closing arguments while the judge instructs the jury. However, as demonstrated by  Wheeler v. U.S., 930 A.2d 232 (D.C. 2007), it is critical to listen to and timely object to the judge’s jury instructions like an eagle hawk. Otherwise, a faulty jury instruction will not be preserved for appeal, and the defendant will suffer.

Cesar Sarausad II was blessed with a team of tenacious trial and appellate lawyer challenging, among other things, a faulty jury instruction concerning criminal accomplice liability. Waddington v. Sarausad, ___ U.S. ___ (Jan. 21, 2009). The Washington State trial and appellate courts rejected his argument that the accomplice liability jury instruction in this murder case was unconstitutionally unambiguous. Sarausad’s lawyers then took his case to the federal courts with a habeas corpus petition. He struck gold with the federal trial court, which ordered habeas corpus relief for ambiguous jury instruction on accomplice liability. He struck gold again before the Ninth Circuit on the same issue. Unfortunately, the Supreme Court granted certiorari review and reversed, saying that the instruction was not ambiguous enough to receive habeas corpus relief, even though the jury had to ask three times about the instruction.

This gist of the Sarausad majority opinion appears to be found in footnote 7: "On federal habeas review, this Court’s inquiry is limited to whether the state court violated clearly established federal law when it held that the jury applied the correct standard, in light of the answers given to its questions. See 28 U.S.C. §2254(d)(1). On that issue, the state court was not objectively unreasonable; the jury’s questions were answered in a manner previously approved by this Court, and they consistently referred the jury to the correct standard for accomplice liability in Washington." .

Praised be Justice David Souter for dissenting, and Justices John Paul Stevens and Ruth Bader Ginsburg for joining his dissent. First, the dissent insists that Washington’s accomplice statute is so ambiguous — as underlined by Washington appellate courts’ efforts to divine the statute’s meaning — that the jury instruction on accomplice is not saved merely because it parrots back an ambiguous statute. Second, Justice Souter says the majority is unrealistic (or did he find this the closest he was willing to come to alleging judicial whitewashing?) in finding that even if the jury instruction was inadequate, that the jurors still applied the "correct view of the state law."

In any event, Sarausad does not preclude success with habeas corpus actions that attack jury instructions. Instead, Sarausad emphasizes the importance of demonstrating and persuading how the record is devoid of reliable evidence that the jury applied the correct view of the law when faulty jury instructions have in fact been issued by the trial judge, and to show how the jury instruction is constitutionally faulty in the first place.

Jon Katz