PACKER v. S.C.Petitioner’s Opening Brief on the MeritsCal.January 21, 2014COPY IN THE SUPREME COURT OF CALIFORNIA JOSHUA GRAHAM PACKER, Petitioner, THE SUPERIOR COURT OF VENTURA COUNTY, Respondent, THE PEOPLE, Real Party in Interest. S 213894 Ct. App. 2/6 B245923 Ventura County Super. Ct. No. 2010013013 SUPREME coupsFipeD JAN 2.1 204 Frank A ay Face, e@puty nee tee OPENING BRIEF ON THE MERITS STEPHENP. LIPSON,Public Defender By Michael C. McMahon, Chief Deputy State Bar Certified Specialist — Appellate Law State Bar Certified Specialist — Criminal Law SBN 71909 800 S. Victoria Avenue, HOJ-207 Ventura, California 93009 (805) 477 - 7114 michael.mcmahon@ventura.org _ Attorney for Petitioner JOSHUA GRAHAM PACKER IN THE SUPREME COURT OF CALIFORNIA JOSHUA GRAHAM PACKER, Petitioner, _ THE SUPERIOR COURT OF VENTURA COUNTY, Respondent, THE PEOPLE, Real Party in Interest. S 213894 Ct. App. 2/6 B245923 Ventura County Super. Ct. No. 2010013013 OPENING BRIEF ON THE MERITS STEPHEN P. LIPSON,Public Defender By Michael C. McMahon,ChiefDeputy State Bar Certified Specialist — Appellate Law State Bar Certified Specialist — Criminal Law SBN 71909 800 S. Victoria Avenue, HOJ-207 Ventura, California 93009 (805) 477 - 7114 michael.mcmahon@ventura.org Attorney for Petitioner JOSHUA GRAHAM PACKER TABLE OF CONTENTS Page: Table of Contents _ . . . , . . i Table of Authorities . . . . . . . iv Opening Brief on the Merits. . . . . . . 1 The Issue. . . . . . . . . 1 Discussion. . . . . . . . . . 2 I. II. Ill. This Court should write an opinion holding that a defendant makesa prima facie showing for an evidentiary hearing whenhe presents facts and circumstances demonstrating a reasonable possibility that the conflicted prosecutor may not exercise his discretionary decisions in an evenhanded manner and an evidentiary hearing is necessary to determine whetherthe conflict is so grave as to renderit unlikely that the defendant will receive fair treatment. . . 2 Alternatively, this Court should write an opinion holding that a defendant makes a prima facie showing for an evidentiary hearing whenhe presents facts and circumstances demonstrating an intolerable risk that the defendantwill not receive fair treatment. . . . . 5 When determining whether or not an evidentiary hearing is necessary, the court should consider whether witnesses material to the recusal issue are unavailable to the defendant absent use of the compulsory process of the court. . . . . . 6 IV. IV-A IV-B IV-C Thetrial court abusedits discretion by denying the motion for recusal without an evidentiary hearing on the groundsthat defendantfailed to make a prima facie showing that recusal was warranted. Frawley’s conflict of interest infects pretrial discovery and investigation as well as both the guilt and penalty phases of the trial. . . . . . . . 9 Defense counsel summarized Packer’s prima facie showing for recusal in the superior court. . . . . 10 The Frawley family members andtheir intimate friends will be essential witnesses for the defense. Theyare not fungible. They are the witnesses who have the most personal knowledge of mitigating . facts, and are the most articulate and credible witnesses to present to the jury. Mr. Frawley’s role as the assignedtrial attorney places these witnesses in an untenable position and creates an inevitable conflict of interest for the witnesses. . . . . . 11 Frawley’s conflict of interest has infected every stage ofthe pretrial proceedings and investigation, and renders it unlikely that Packer will receive a fairtrial. . . . . . . . . 13 A primafacie case is shown when a father will be litigating the weight, credibility, and significance of the testimony of his children and spouse(s). This ii should be viewed as a form of “reverse vouching.” . . 17 VI. Judgments of death inevitably lead to federal habeas review. Factual findings made bystate courts that improperly deny capital defendants evidentiary hearings will not be afforded deference in federal habeas proceedings. Denial of an adequate state hearing is a false economy.. . . . . . 19 Conclusion . . . . . . . . . 21 Certificate of Word Count . . . . . . 22 Declaration of Service . . . . . . . End iii TABLE OF AUTHORITIES Page: Constitutions: Sixth Amend. . . . . . . ; 17 Due Process Clause . . . . . . . 14 Cases: | Caperton v. A.T. Massey Coal Co., Inc. (2009) 556 U.S. 868 . 6 Floyd v. Meachum (2™ Cir. 1990) 907F.2d , 17 Giglio v. United States (1972) 405U.S.150 . . 14 Hambarian v. Superior Court (2002) 27 Cal.4th 826. . 2 Hurles v. Ryan (9Cir. 2011) 650 F.3d 1301. , . 6, 19 Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 . ; . 20 Kyles v. Whitley (1995) 514U.S.419 . . ; ; 14 Maurer v. Minnesota Department ofCorrections (8" Cir. 1994) 32 F.3d 1286 . . . . 17 Morrow v. Superior Court (1994) 30 Cal.App.4th 1252. . 7 Nunes v. Mueller (9th Cir. 2003) 350 F.3d 1045 . . . 19 Patton v. Yount (1984) 467 U.S. 1025. . . . 13 Perez v. Rosario (9th Cir. 2006) 459 F.3d943 . |. . 19 People v. Bonilla (2007) 41 Cal.4th 313 . . . 18 People v. Conner (1983) 34 Cal.3d 141 . . . . 2 People v. Eubanks (1996) 14 Cal.4th 580. . . 2 People vy. Gutierrez (2013) 214 Cal.App.4th 343. . . 14 People v. Medina (1995) 11 Cal.4th 694 . . . . 18 People v. Millwee (1998) 18 Cal.4th 96. . . . 2 People v. Snow (2003) 30 Cal.4th 43 . . . . 2 People v. Superior Court (Greer) (1977) 19 Cal.3d 255 . 2 People v. Zambrano (2007) 41 Cal.4th 1082 . . 18 iv Spaccia v. Superior Court (2012) 209 Cal.App.4th 93. Taylor v. Maddox (9" Cir. 2004) 366 F.3d 992 . United States v. Bagley (1985) 473 U.S. 667 United States v. Edwards (9" Cir. 1998) 154 F.3d 915 . Wiggins v. Smith (2003) 39 U.S. 510 Weaver v. Thompson (9th Cir. 1999) 197 F.3d 359 Statutes and Rules: AEDPA Evid. Code, § 1150 . Pen. Code, § 1054.1. - Pen. Code, § 1326, subd.(a) Pen. Code, § 1424 Pen. Code, § 1424, subd. (a)(1) Other: Ventura County Star 3,4 20 14 17 17 20 20 19 14 2, 3,5 13 IN THE SUPREME COURT OF CALIFORNIA JOSHUA GRAHAM PACKER, Petitioner, S 2 1 3 894 vy. Ct. App.2/6 B245923 THE SUPERIOR COURT OF | Ventura County VENTURA COUNTY Super. Ct. No. 2010013013 Respondent, THE PEOPLE, Real Party in Interest. OPENING BRIEF ON THE MERITS TO CHIEF JUSTICE TANI CANTIL-SAKAUYE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner respectfully submits this opening brief on the merits: THE ISSUE Did thetrial court abuse its discretion by denying a motion for recusal without an evidentiary hearing on the groundsthat petitioner failed to make a prima facie showing that recusal was warranted? (Mr. Packer (Packer) respectfully submits that the court’s discretion was abused.) Discussion I. This Court should write an opinion holding that a defendant makes a prima facie showing for an evidentiary hearing whenhepresents facts and circumstances demonstrating a reasonable possibility that the conflicted prosecutor may notexercise his discretionary decisions in an evenhanded manner and an evidentiary hearing is necessary to determine whetherthe conflict is so grave as to renderit unlikely that the defendant will receive fair treatment. In People v. Superior Court (Greer) (1977) 19 Cal.3d 255, this Court considered whether, and under what circumstances,a trial court possesses the authority to recuse a district attorney’s office from a case and to direct the Attorney Generalto take over the prosecution. Three years later, section 1424 was added to the Penal Code. Since its enactment in 1980, section 1424 has governed motions to disqualify the prosecuting attorney. The statute requires the defense to make a motion in writing with notice, and to include affidavits. (/d., at subd. (a)(1).) The statute further provides, “[t]he judge shall review the affidavits and determine whether or not an evidentiary hearing is necessary.” (/bid.) Undersection 1424, the defendant must demonstrate the existence of a conflict of interest. A conflict of interest exists “wheneverthe circumstancesof a case evidence a reasonable possibility that the [conflicted person or entity] may not exercise its discretionary function in an evenhanded manner.” (People v. Conner (1983) 34 Cal.3d 141, p. 148; accord, People v. Snow (2003) 30 Cal.4th 43, 86; Hambarian v. Superior Court (2002) 27 Cal.4th 826, 833; People v. Millwee (1998) 18 Cal.4th 96, 123; People v. Eubanks (1996) 14 Cal.4th 580, 592.) Packer respectfully asserts that the circumstances of this case evidence a reasonable possibility that Michael Frawley maynotexercise his discretionary function in an evenhanded manner. The closer question is whether Michael Frawley’s conflict is so grave as to renderit unlikely that Packer will receive fair treatment. Under the circumstances of this case, an evidentiary hearing is necessary to assess the gravity of the conflict and the likelihood of unfair treatment. In this case, the trial judge denied the recusal motion based solely on the affidavits submitted by both sides, and refused to conduct any evidentiary hearing. The Court of Appeal affirmed this action, ruling, “In sum,thetrial court did not abuse its discretion in concluding that Packer had not made a prima facie showingthat the prosecutor’s apparent conflict of interest was so grave asto result in an actual likelihood of unfair treatment: The court consequently did not abuse its discretion in denying an evidentiary hearing or in denying his recusal motion.” (Slip opn., p. 19; citation and quotation marks omitted.) Section 1424 should be construed to permit an evidentiary hearing when such a hearing is necessary to makethat determination. Therecordin this case suggests that the trial court believed (as was argued by the prosecutor) that an evidentiary hearing was not authorized for this purpose. This point of law should be clarified. Because this Court’s recusal jurisprudencearises from cases in which the defendant wasat least afforded the opportunity of an evidentiary hearing,it is unclear under what circumstances a court may determine that an evidentiary hearing is necessary. Spaccia v. Superior Court (2012) 209 Cal.App.4th 93, was a case in which a court did not abuseits discretion to deny a recusal motion without an evidentiary hearing, but it is quite different than the circumstancesofthe instantcase. Spaccia’s request for an evidentiary hearing was based on her attempt to show an appearance of impropriety if the district attorney’s office continued to prosecute her case. (/d., at p. 108.) An evidentiary hearing was properly denied because a mere appearanceof impropriety is an insufficient basis on whichto recuse a prosecutor’s office as a matter of law. Packer concurs: when the defendant’s legal theory for recusalis, itself, defective no evidentiary hearing is necessary. An appearance of impropriety is not a conflict. When no conflict is demonstrated, no evidentiary hearing is ever necessary. The charges against Spaccia related, in part, to her involvement in a transaction in which Randy Adamswaspurportedly hired by the city of Bell to act as the city’s chief of police, for a very substantial salary, the amount of which was hidden from the City Council. Spaccia requested an evidentiary hearing to take testimony from Adams, whom shepredicted would refuse to testify by asserting his privilege against self-incrimination. Under such odd circumstances, it was not an abuseofdiscretion to deny the motion without an evidentiary hearing. Becauseof its unique facts (and rather inept presentation by Spaccia’s counsel), Spaccia v. Superior Courtoffers this court little guidancehere. . Packer contendsthat the court’s formulation in Spaccia of whatis required to warrant an evidentiary hearing (/d., at pp. 111-112) may be inappropriate in cases wherereluctantor hostile witnesses could not assert a privilege against self- incrimination at the hearing, thereby defeating the purpose of an evidentiary hearing. However, given that Spaccia’s entire theory for recusal was fatally flawed, this portion ofthe opinion appearsto be dicta. “Even if an evidentiary hearing established everything Spaccia had hopedit would establish,” recusal was barred by law. (d., at p. 112.) Clearly in Spaccia, no evidentiary hearing was necessary. It does not appear that Spaccia hasbeencited in any published opinion concerningthe primafacie case. / / II. Alternatively, this Court should write an opinion holding that a defendant makes a prima facie showing for an evidentiary hearing when he presents facts and circumstances demonstrating an intolerable risk that the defendantwill not receive fair treatment. Thelikelihood of an unfairtrial described in section 1424, should not call for a pretrial prediction that any conviction at trial would likely be overturned on appeal. Such a standardis impracticable. The doctrine of harmless error dictates that unfairness by the prosecutor mayultimately be determinedto be harmless, but only after careful scrutiny of the entire appellate record - which does notexist at the time a recusal motionis considered. Packer contendsthat the trial court abused its discretion in denying an evidentiary hearing because he presented facts and circumstances demonstrating an intolerable risk that the defendant will not receive fair treatment. If the prima facie showing for an evidentiary hearing is an intolerable risk of unfairness, the standard promotes judicial economy. No court should be forced to deny an evidentiary hearing when confronted by such a showing. It reasonably appearsthat the Legislative intent behind section 1424 was the promotion ofjudicial economy. That goal would be furthered by adoptionof an intolerablerisk standard for the prima facie showing. Use of an unreasonably burdensomelegal standard for evaluating the prima facie showingfrustrates judicial economy. Here, had the court conducted an evidentiary hearing,it is likely it could have been concludedin a day or two. Packer is aware that there are important differences between judicial recusal and recusal of a prosecutor. Nevertheless, both involve some pretrial assessment of the likelihoodof bias and prejudice. In neither context should the defendantbe called uponto prove actual prejudice before trial, and both contexts implicate important due process protections. (Cf. Hurles v. Ryan (9" Cir. 2011) 650 F.3d 1301 [due process requires judicial recusal where the probability of actual bias on the part of the judge or decision makeris too high to be constitutionally tolerable]; see also Caperton v. A.T. Massey Coal Co., Inc. (2009) 556 U.S. 868.) In the instantcase, a trial prosecuted by Michael Frawley presents an intolerable risk of unfairness. III. When determining whetheror not an evidentiary hearing is necessary, the court should consider whether witnesses material to the recusal issue are unavailable to the defendant absent use of the compulsory process of the court. In the instant case, an evidentiary hearing is necessary because witnesses whoare material to the issue of recusal include witnesses whoare not readily available to the defendant absent the compulsory process of the court. At an evidentiary hearing in the Packercase, the defense would subpoena witnesses who will not voluntarily submit an affidavit in support of recusing Michael Frawley. These witnessesare: e Kyle Frawley, Michael Frawley’s son; e Elizabeth “Ellie” Frawley, Michael Frawley’s daughter: e Linda Frawley, Michael Frawley’s wife: e Thomas Cathcart, Ellie Frawley’s former boyfriend; e Lisa West, Michael Frawley’s ex-wife; e Deputy Sheriff Scott Bauer; and, e District Attorney Investigator Matt Harvill. These witnesses, becauseoftheir relationship to the assigned prosecutor, are not available to the defense to voluntarily provide an affidavit in support of the recusal of the assigned prosecutor. “The process by which the attendance of a witness before a court or magistrate is required is a subpoena.” (Pen. Code section 1326, subd. (a).) However, there is no process to compela reluctant or hostile witness to provide a capital defendantin a high-profile prosecution with a voluntary affidavit. In determining whether an evidentiary hearing is necessary, the court should consider the circumstance that witnesses material to the recusalissue are not available to the defendant other than by subpoena. | In letter to this Court urging your grant of review, the Public Defender of Los Angeles County putit this way: “In these situations,a trial judge should not be permitted to deny a recusal motion based solely on whatwill amount to incomplete affidavits. It should not, and cannot, bethe rule that one party can refuse to cooperate with the other and thereby prevent that party from conducting an evidentiary hearing where the information can be fully developed and explored. Yet this is the inevitable consequence of the Court ofAppeal’s opinion. * * * In those cases, . . .where the prosecution refuses to cooperate with the defense, and the defense seeks an evidentiary hearing to compel disclosure of information aboutthe conflict, a rule permitting the trial judge to deny the recusal motionsolely onthebasis of the affidavits would be quite unfair. This court should not permit that result, a result the Court of Appeal endorses.” | That well-written letter from the largest criminal defense office in the world supports Packer’s position before this court. It is in this Court’s file and was servedonall of the parties. It is “worth the candle” for a second reading, but for purposesof brevity, Packerwill leave that to the discretion of the Courtand other parties. In Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, a prosecutor from the samedistrict attorney’s office (Ventura County) used her investigator to eavesdrop on a courtroom conversation between defendantandhis attorney. Morrow movedto dismiss because of prosecutorial misconduct. The defense called the prosecutorand the investigator as witnesses at the hearing on the motion to dismiss. They exercised the right to remain silent and refused to answer questions claiming the privilege against self-incrimination. The privilege was sustained. After limiting access to the facts, the prosecution then took the position that dismissal was inappropriate because Morrow had not proven prejudice by the misconduct. Reviewing an order denying the motion, the Court of Appeal heldthat: “Where a prosecutor orchestrates courtroom eavesdropping on a privileged attorney- client communication and the witnesses thereto invoke the privilege againstself- incrimination, the prosecution may not successfully oppose a motion to dismiss on the groundthat no prejudice has been shown.” (/d., at p. 1258.) Here, Packer finds himself in a similar predicament. Circumstantial evidence supports the conclusion that Michael Frawley hashad conversations with many of the witnesses material to the recusal issues. Frawley has madefactual representations that could not be made without such conversations. (Vol. 1, pp. 28- 32.) Frawley has revealed what he choosesto reveal, but no more,stating only that “I do not believe any further information is necessary or required, legally or ethically...” (d., at p. 30.) After refusing to provide “any further information” despite the very specific and focused questions from the defense, (/d., at p. 29) Frawley then takes the position that no evidentiary hearing is authorized because Packer’s prima facie showing is inadequate. Frawley’s position makes an evidentiary hearing not only necessary, but essential. The court abusedits discretion in denying further hearing, but may have doneso by adopting Frawley’s standardfor a prima facie showing. That standard does not sit well on these facts. IV. Thetrial court abusedits discretion by denying the motion for recusal without an evidentiary hearing on the grounds that defendantfailed to make a primafacie showing that recusal was warranted. Frawley’s conflict of interest infects pretrial discovery and investigation as well as both the guilt and penalty phasesofthetrial. This is a “cold-hit,” capital murder case in which the People continue to seek death. Asin all capital cases, the circumstances of the crimeare horrific. Although the prosecution mayget this case to a penalty phase, the defense has powerful evidence in mitigation, and has an excellent chance of an LWOPverdictif given a fair trial after full and fair discovery and unimpededpretrial investigation. Joshua Packer’s (Packer) upbringing was unimaginably horrible. Direct damage was doneto Packer from being molested as a child on multiple occasions by separate men who were given access to him by negligent caregivers; from being abandonedbycaregivers; from receiving a head injury at age 6 and disfigurementat age 8 dueto parental neglect; from being attacked in his home by a drug addictat age 6; from being attacked in his bed by a wanted sex offender at age 11; and from being exposed in his hometo drug use, drug trafficking, and domestic violence. In addition, the cumulative turmoil from every single caregiver in Packer’s life having run-ins with the law; having to get cars out of impound;calling from the jail to makebail; coming to court; being on probation; having confrontations with former spouses, each other, and strangers; struggling with drug and alcohol addiction; and dealing with addicted and mentally ill family and household membersresulted in utter chaos in Joshua Packer’s life. The defense hopesto present that chaos in a manner understandable to jurors at a fair trial. Following his arrest in another county, a DNA sample was taken from Packer which eventually identified him as a potential perpetrator in the Ventura County case. Michael Frawley was quickly designated as the lead prosecutor. On October 14, 2010, Packer offered to plead guilty in exchangefor a sentenceoflife in prison withoutthe possibility of parole. That settlement offer was rejected, but has not been withdrawn. (Vol. 1, at p. 27.) 1V-A Defense counsel summarized Packer’s primafacie showing for recusal in the superior court. Defense counsel summarized Packer’s prima facie showing in the superior court. This is an illuminating part of the record which petitioner will not repeat here. The summaryis memorialized in a reporter’s transcript located in Volume 4 at Bates numbered pages 782 through 816. (The attention of the Court of Appeal wasdirected to that same summaryin the Verified Petition for Writ of Mandate in paragraph #20 on page 6, however the page numbersreferred to the original pagination of the Reporter’s Transcript of Proceedings on November 19, 2012; in that transcript, the relevant pages are 1075 through 1109. From its opinion, there is no indication the Court of Appeal was confused by paragraph #20.) Although Ventura cannot be considered a small town with a small district attorney’s office, in a unique set of circumstances, defendant Packer was friends with prosecutor Frawley’s children (Kyle and Ellie) and Thomas Cathcart (Cathcart). Cathcart, at the time, was Packer’s best friend and dating Ellie. With Cathcart, and individually, Packer attended manysocial events in the Frawley home, as well as faith-based activities in the Frawley home at which Frawley’s current wife, Linda, was a leader. A further circumstance: Frawley’s former wife, Lisa West (West), was friends with the victims, the Husteds. Davina Husted (Davina) and West were very active together in the Junior League. While Davina served as President of the Junior League, West served as a memberofher Board of Directors. Davina’s documents note that Frawley and his current wife Linda are Junior League supporters. Davina’s 10 community service in the Junior League with West, and the support of Frawley and his current wife Linda, will be important “victim-impact” evidenceattrial. The activities and relationships which took place during three, formative teen years are important in Packer’s social history. Frawley’s children were good kids wholived in a good home,and wereraised by caring parents and a step-parent active in their church and community. Packer’s life was a dreadful saga of physical and sexual abuse, plus drug-ridden parental emotional abuse and neglect. His experience with the Frawley family reflect desperate attempts to “fit in,” have quality friends, worship God, and escape the anguish of his daily home-life of abuse and trauma. IV-B The Frawley family membersandtheir intimate friends will be essential witnesses for the defense. They are not fungible. They are the witnesses whohavethe most personal knowledge of mitigating facts, and are the most articulate and credible witnesses to present to the jury. Mr. Frawley’s role as the assigned trial attorney places these witnesses in an untenable position and creates an inevitable conflict of interest for the witnesses. The Court of Appeal misses the point by repeatedly emphasizing and stating there were some 50 students involved in the Young Life Christian ministry. Nearly all of the 50 were only involved in some marginal, peripheral, or temporary manner. As was madeclear in Packer’s prima facie case, only four have the capacity to be compelling and persuasive witnessesattrial: e Frawley’s son, Kyle Frawley, e Frawley’s daughter, Ellie Frawley, e Ellie’s former boyfriend, and Packer’s best friend, Thomas Cathcart, (who will be an important witness at both the guilt and penalty phaseofthe trial) and, e Kristy Benscoter. These four were the core members of Young Life and those mostintimately familiar with Packer’s redeemingtraits of character, pro-social behavior, and charitable activities. For three years, they, together with Packer, attempted to understand their 11 spiritual connection to Christ. The testimonyof these four witn lies at the very heart ofPacker’s defense. Numerous exhibits submitted in support ofthe application for an evidentiary hearing support the conclusion that Packerhad a special relationship with Michael Frawiey’s daughter, andthat Frawley’s attempts to minimize therelationship are misleading. Anevidentiary hearing would resolve these factual disputes. This photofrom a Woodlcaf camping trip by a gathering of both the Oxnard and Ventura Chapters of YoungLife depicts Thomas Cathcart, Kristic Benscoter, andFlic Frawley, with Packer draped affectionately over Kristy to place his headin Ellie’s lap: PPllie Frawley 1Kristy Benseoter, seated. ThomasCathcart (blond), ‘Joshua Packer, red shorts standing, blue shirt, 12 In contrast to the four, only Packer was attempting to understandhis spiritual connection to Christ after a lifetime of unspeakable trauma, abuse, and betrayal by sexually-perverted caretakers. 1V-C Frawley’s conflict of interest has infected every stage of the pretrial proceedings andinvestigation, and rendersit unlikely that Packer will receive a fair trial. A fair trial begins long before the swearing ofthe first witness. Among other things, a fair trial requires the absence ofpretrial publicity that creates an irrepressibly hostile attitude in the jury pool and community. In Patton v. Yount (1984) 467 U.S. 1025, the High Court noted that “adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors’ claims that they can | be impartial should not be believed, ....” (/d., at p. 1031 [abrogated by later casesas to the standard of review of such claims].) Nevertheless, from the inception of the case, Frawley has publicly maligned and disparaged defense counsel, primarily becauseof his family’s inevitable role as defense witnesses. Frawley told the Ventura County Star that, “Ay children have nothing to do with the case. IfI wasn’t the prosecutor, you wouldn't hear anyone mention them with regard to the case. * ** [I]t’s probably the lowestsort oftrial tactics I’ve ever seen.” The article noted that, “After the hearing, Frawley said Maserang would apparently stop at nothing to get what he wanted.” (Recusal Exhibit LL; Petition Exhibit Vol.I, p. 51.) These attempts to publicly and unfairly vilify defense counsel demonstrate that Frawley’s embroilment and emotionalbiasarelikely to infect his discretionary duties. With Frawley at the helm, the case will neversettle. A fairtrial also requires full and fair discovery. There is strong circumstantial and direct evidence that Frawley and his team haveinstructed witnesses not to discuss their relationship with the Frawley family, and held back evidence of Packer’s relationships with the Frawley family and intimate friends. 13 Dueprocess imposes an “inescapable” duty on the prosecutor “to disclose known, favorable evidencerising to a material level of importance.” (Kyles v. Whitley (1995) 514 U.S. 419, 438.) Favorable evidence includes both exculpatory and impeachment material that is relevant either to guilt or punishment. (See United States v. Bagley (1985) 473 U.S. 667, 674-76; Giglio v. United States (1972) 405 U.S. 150, 154.) Penal Code section 1054.1 provides: “The prosecuting attorney shall disclose to the defendantorhis or her attorney all of the following materials and information,if it is in the possession of the prosecuting attorney orif the prosecuting attorney knowsit to bein the possessionofthe investigating agencies: [§] (a) The names and addresses of persons the prosecutor intendsto call as witnessesattrial. [{] (b) Statementsofall defendants. [{] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [] (d) The existence of a felony conviction of any material witness whosecredibility is likely to be critical to the outcomeofthe trial. [{] (e) Any exculpatory evidence. [{] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intendsto callat the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations,scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidenceat the trial.” (Italics added.) . The duty to disclose exculpatory evidence undersection 1054.1, subdivision (e) is not circumscribed by any referenceto trial, which suggests that a California prosecutor’s codified duty to disclose exculpatory evidence applies to pretrial proceedings. (Cf. People v. Gutierrez (2013) 214 Cal.App.4th 343, 355 [disclosure duty before the preliminary hearing].) The conflicted impairment of Frawley’s “legal discovery obligations” was an important part of Packer’s prima facie case. (Vol. 4, at pp. 1082-1083.) Frawley did not want his children to be witnesses for the defense, andthis conflict infected his judgment. 14 Mischiefby the prosecution intervening in the defense mitigation investigation has already occurred. Former prosecution witness Thomas Cathcart dated Mr. Frawley’s daughter, Elizabeth, in high school. Cathcart was one of Joshua Packer’s best friends in middle school and high school. Mr. Frawley has sworn that he did not know about his daughter’s dating relationship to Cathcart. Nonetheless, right before an interview at the prosecutor’s office, Matt Harvill, Mr. Frawley’s investigator, instructed Cathcart not to mention Elizabeth Frawley during the interview. Harvill apparently did know ofthe relationship. Harvill’s attempt to circumscribe the scope of Cathcart’s statement should be scrutinized at an evidentiary heating. In a death penalty case in which Thomas Cathcart, Packer, and Ellie Frawley spent time together at Frawley’s home for Young Life events, as well as social events and parties unrelated to Young Life, such disclosures might be embarrassing to Frawley, yet mitigating to Packer. Paring off the mitigating testimony in this way to shield his own personalinterests, including the interests of his daughter, wife, and family, is another example ofwhy Frawley cannot reasonably serve as a gatekeeper to potential defense mitigation. In an apparenteffort to sanitize himself from the recusal conflict, Frawley subsequently removed Cathcart from the list of prosecution witnesses. Despite Cathcart’s removal from that list, an aggravating incident in which Cathcart wasthe victim remains noticed in aggravation and has been re-noticed multiple times since his delisting. Cathcart was with Packer the day following the murders andis likely to be called by the defense during the guilt phase. Additionally, when the defense attempted to subpoenaEllie Frawley as a mitigation witness at her family home while she was on a break from college, Michael Frawley angrily informed Deputy Sheriff Scott Bauer that his daughter had nothing to do with this case. (Mr. Frawley and the deputy may now denythis, but the - deputy informed a defense investigator that this occurred. An evidentiary hearing would resolve this dispute.) Thereafter, the deputy ceased his efforts to serve Ms. 15 efforts to serve Ms. Frawley, Ms, Frawley even “tweeted” about herattempts to avoid being subpoenaed by the defense Results for attorneytatherprobs Tweets tan at eine ce hy Really over net being abis to Meet my whereabouts This oetter pay off #etlomeylaiherarobs Expand Dias Tue 125 N's (oo Batlarnwyfatherppabs ae viaveilane Similarly, Ellie's brother, Kyle Frawley, attemptedtoavoid a defense subpoena, Hetold a defense investigator thathe did so aller his father told him he might be subpoenaed if he spoke with a defense investigator about his relationship ta Mr. Packer. Later, Kyle wasinterviewed bya District Attorneyinvestigator in the presenceofhis father. Kyle’s statement then changedto the detrimentofhis former friend, Joshua Packer. Priorto the recusal motion, there were constantfights over SD1’s issued bythe defense. Allowing Frawley to make determinations about the defendant's socialhistory investigation invites arbitrary, capricious, mischievous, and uninformed decision making, The personal, professional, and political interests and aspirations ofthis prosccutor whoseeks Packer’s death could not be more adverse to the Packer’s interests. As lead prosecutor. he has beenwilling to pursue this case despite knowing from the very beginningthat to do so wouldplace his own children in the midst oflitigation in this high profile death penalty case. (Sco RI. at p. 1319, 16 lines 22-24, 6/25/2013: “I knew that the motion to recuse me wasgoing to be brought three years ago, right after I disclosed whatI disclosed to the defense.”) Having Frawley as the gatekeeper to records that concern a significant, large portion of. Packer’s social history investigation is a recipe for mischief. Counsel’s Sixth Amendmentresponsibilities include a duty to engage in a reasonable investigation concerning aspects of the defendant’s background that would support a mitigation case. (Wiggins v. Smith (2003) 39 U.S. 510, 522-23.) Circumstantial evidence supports the conclusion that Frawley is impeding that investigation. V. A prima facie case is shown when fatherwill be litigating the weight, credibility, and significance of the testimonyof his children and spouse(s). This should be viewed as a form of “reverse vouching.” Frawley’s children, Kyle and Ellie will testify at trial. Cathcart will testify and be testified about by other witnesses. (Cathcart is the alleged victim in a matter in aggravation.) Frawley’s wife and former wife may both testify. The jury will be called uponto assess the credibility of these witnesses. Whenthe jury is left with the impression that the prosecutor has important information regarding the credibility of a witness based upon information other than what waspresentedto the jury at trial, federal due processis threatened. This is often referred to as “vouching.” (See, e.g., Maurer v. Minnesota Department ofCorrections (8" Cir. 1994) 32 F.3d 1286, 1290-1291 [prosecutor’s vouchingin rape case violated due process]; United States v. Edwards (9"Cir. 1998) 154 F.3d 915 [a prosecutor’s continued representation of government following his discovery of a key piece of evidence, the circumstances of which werein dispute, was a form of vouching that undermined the fundamental fairness ofthe trial]; Floyd v. Meachum 17 (2"™ Cir. 1990) 907 F.2d 347 [cumulative effect of repeated misconductincluding vouching for the credibility of state’s witness, rendered trial fundamentally unfair].) California cases are in accord with the federal cases. (See People v. Medina (1995) 11 Cal.4th 694, 776 [“prosecutors should not purport to rely in jury _argumenton their outside experience or personal beliefs based on facts not in evidence”].) Impermissible vouching occurs when “prosecutors [seek] to bolster their case ‘by invokingtheir personal prestige, reputation, or depth of experience, or the prestige or reputation oftheir office, in support ofit.” [Citation.] Similarly,it is misconduct‘to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.’” (People v. Bonilla (2007) 41 Cal.4th 313, 336; see People v. Zambrano (2007) 41 Cal.4th 1082, 1167.) Packeris not asking the court to speculate in advanceas to the content ofprosecutor Frawley’s argumentat trial. However, in the circumstances of the instant case, it is inevitable that the jury will infer that Frawley has information regarding the credibility of his own family above and beyond that which was presented at trial. When he stands before the jury and argues for a verdict of death,it will be very difficult for the jury to impartially weigh and assess the testimonyofhis children and others intimately associated with the Frawley family regarding Packer’s redeemingtraits of character. “If their own father was unswayed,” they will surely ask, “why should wefind the testimony to be significant.” This unspoken subtext should be viewed as a form of “reverse vouching.” In traditional vouching,jurors are put in a position to credit the testimony of the witness, despite the instruction to evaluate the testimony based solely on the evidence introducedattrial. In this “reverse vouching”situation, jurors are at great risk of discounting the testimony of the witness becausethe prosecutor’s special, long- standing, and intimate relationship with the witness means he knowsfar more about the witness then ever could be presentedattrial. But the likelihood of prejudice is quite similar. 18 In case that are reversed for “vouching,” the reversalis rarely based uponactual proof ofprejudice from testimonyofthe trial jurors. Such evidence of actual prejudice is barred by Evidence Code section 1150 for extrinsic policy reasons. Thereversal is based upon a reviewing court’s assessmentthat the risk of prejudice is intolerably high. VI. Judgments of death inevitably lead to federal habeas review. Factualfindings madebystate courts that improperly deny capital defendants evidentiary hearings will not be afforded deference in federal habeas proceedings. Denial of an adequate state hearing is a false economy. In Hurles v. Ryan (2013) 706 F.3d 1021, 1038-1039,the state trial court denied a motion to recuse the assigned judge and denied the defendant an evidentiary hearing on the recusal motion. The Court of Appeals stated that: “Judge Hilliar’s denial ofHurles’s judicial bias claim rests on an unreasonable determination ofthe facts. We have held repeatedly that wherea state court makesfactual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, ‘the fact-finding processitself is deficient’ and notentitled to deference. Taylor, 366 F.3d at 1001 (If, for example,a state | court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an unreasonable determination of the facts.’) (internal quotation marks omitted); see also Perez v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006) (amended) (‘In many circumstances, a state court’s determination of the facts without an evidentiary hearing creates a presumption of unreasonableness.’) (citing Taylor, 366 F.3d at 1000); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 19 2003) (‘But with the state court having refused [the petitioner] an evidentiary hearing, we need not of course defer to the state court’s factual findings- if that is indeed how thosestated findings should be characterized - when they were made without such a hearing.’); cf. Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (Having refused [petitioner] an evidentiary hearing on the matter, the state cannot argue now that the normal AEDPA deferenceis owed the factual determinations ofthe [state] courts.’); Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir. 1999) (according no deference where written statements by trial judge to defense counsel ‘were not subject to any of the usualjudicial procedures designed to ensure accuracy’).” Those observations underscore the false economy and unfairness of a court denying an evidentiary hearing when confronted with a compelling prima facie showing ofprosecutorial bias based in part upon the anticipated testimony of adverse andhostile witnesses. Conducting an expeditious evidentiary hearing right now is far preferable to conducting a hearing decades from now following a remandfrom the 9"Circuit. / / 20 Conclusion This court should reverse the judgment of the Court of Appeals with directions to grant Packer an evidentiary hearing to demonstrate that Frawley’s conflict is likely to lead to unfair proceedings andtrial. Dated: January 17, 2013. Respectfully Submitted, STEPHENP. LIPSON, Public Defender By Michael C. McMahon, Chief Deputy State Bar Certified Specialist — Appellate Law State Bar Certified Specialist — Criminal Law . SBN 71909 Attorney for Petitioner 21 CERTIFICATE OF WORD COUNT The undersigned hereby certifies that by utilization of MSWord 2007 Word Count feature there are 6,758 words in Times New Roman 13 pt. font in this Seve Jeane Renick Legal MgmtAsst. II document, excluding Declaration of Service. Dated January 17, 2014. 22 DECLARATIONOF SERVICE Case Name: JOSHUA GRAHAM PACKER,Petitioner, v. THE SUPERIOR COURT OF VENTURA COUNTY,Respondent; THE PEOPLE,RealParty in Interest. Case No. 8213894 (from Ct. App. 2/6 B245923 [Superior Court No. 2010013013]) On January 17, 2014,I, Jeane Renick, declare: I am over the age of 18 years and nota party to the within action or proceeding. I am employedin the Office of the Ventura County Public Defender. My business address is 800 South Victoria Avenue, Ventura, California, 93009. On this date I personally served the following named person(s), at the place indicated herein, with a full, true and correct copy of the attached OPENING BRIEF ON THE MERITS: Gregory Totten, District Attorney HON. PATRICIA MURPHYand Attn: Michael Schwartz, Spec Asst DA MICHAEL PLANET,Executive 800 South Victoria Avenue, 3rd Floor Officer, Sup. Ct. Ventura, CA 93009 800 South Victoria Ave., 2nd Floor [Counsel for the People] Ventura, CA. 93009 [Trial Judge] Iam “readily familiar” with the County of Ventura’s practice of collection and processing correspondencefor mailing. Under that practice outgoing correspondence would be deposited with the U.S.postal service on that same day with postage thereon fully prepaid at Ventura, California, in the ordinary course of business. I am aware that on motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than one business dayafter date of deposit for mailing affidavit. On this date, I served the attached OPENING BRIEF ON THE MERITSbyplacing in the U.S. Mail,a full, true, and correct copy thereof in an envelope addressed to the persons named belowatthe addressesset out below, by sealing and depositing said envelope in the Ventura County U.S. Mailcollection center in the ordinary course of business. California Court of Appeal, Clerk’s Office Kamala Harris, Attorney General Second District, Division Six 300 S. Spring St., 5" Flr/N Twr 200 East Santa Clara Street Los Angeles, CA 90013 Ventura, CA 93001 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on the above date at San Buenaventura, California. STEPHENP.LIP ublic By Jeane Renick, Legal Mgmt. Asst. IIT Public Defender's Office 23
