Trial counsel’s failure to object to this omission in the instruction was ineffective assistance of counsel necessitating a new trial.Evanchyk v. Stewart, 340 F.3d 933 (9th Cir. 2003)It is a violation of due process for a jury instruction to omit an element of the crime. UnitedStates v. Gaudin, 515 U.S. 506 (1995); Osborne v. Ohio, 495 U.S. 103 (1990); Sandstrom v.Montana, 442 U.S. 510 (1979); In re Winship, 397 U.S. 358 (1970). In this case, the jury instruction on the law of conspiracy to commit murder omitted the element of the offense of intent to murder (the trial court offered the jury the option of finding the defendant guilty of conspiracy to commit felony murder which is not an offense under the applicable state law).
The Supreme Court held that the state rules were not adequate to preclude federal habeas review because Lee’s "asserted right to defend should not depend on a formal ‘ritual . . . [that] would further no perceivable state interest.’" (quoting Osborne v. Ohio, 495 U.S. 103, 124 (1990)). When he moved for the continuance, Lee testified under oath that the missing witnesses had traveled voluntarily from California to Missouri, were subpoenaed when they arrived in Missouri, had been present in the courthouse that morning, and would not be leaving for California for another two days.