9th Circuit Finds Flaws in Robbery Conviction

     (CN) - A man allegedly forced into an 11-day string of robberies for which he is now serving 55 years in prison deserves a new trial, the 9th Circuit ruled Tuesday.
     From April 9 to April 17, 2003, three stores, a restaurant and the home of an elderly couple were the sites of armed robberies. One of the crimes left an employee shot in the hand.
     Two of the robbers accepted plea deals, but a third accused co-conspirator, Joshua Frost, went to trial and argued that he had joined in the robberies only after the others had threatened to kill him and his family.
     He told police that he had acted variously as lookout and getaway driver during the spree.
     In addition to the duress defense, Frost argued that there was little evidence to prove that he had been a willing accomplice in the crime spree.
     As the trial was wrapping up and Frost's attorney prepared to make his closing arguments, the trial judge determined that the jury should hear just one defense theory.
     The duress defense required an admission of the "elements of the crime" before it could be brought up, the judge said.
     Jurors ultimately convicted Frost of all charges except for one assault, and sentenced him to 55 years in prison. The Washington Court of Appeals affirmed, as did the Washington Supreme Court - but only narrowly. Despite finding that the trial court should have let Frost argue both theories, the justices deemed the error harmless.
     Frost then petitioned for federal habeas corpus. U.S. District Judge Thomas Zilly in Seattle denied relief, and the 9th Circuit affirmed in 2012. The San Francisco-based appeals court agreed last year to hear the case again before an 11-judge, en banc panel. That panel reversed 7-4 on Tuesday.
     "The Supreme Court has instructed that preclusion of closing argument in a criminal defense trial is structural constitutional error," Judge Sidney Thomas wrote for the majority.
     "The trial court infringed Frost's Sixth and Fourteenth Amendment rights when it precluded his counsel from making a reasonable doubt argument to the jury," Thomas added. "Frost was deprived of his right to demand that a jury find him guilty of all the elements of the crime. The trial court's action amounted to a directed verdict of guilty. The burden of proof was unconstitutionally shifted. Frost's right to present a closing argument was violated. These constitutional violations were structural and not subject to harmless error review."
     Finding that "this conceded constitutional error requires a retrial," the court remanded the case to Seattle.
     Writing in dissent, Judge Richard Tallman argued that the majority had overstepped its bounds by reversing three state courts.
     "By declaring structural error in this circumstance, our court once again ignores the Supreme Court's trenchant instructions to exercise restraint in defining clearly established federal law, to grant deference to state courts under the Antiterrorism and Effective Death Penalty Act, and to find structural error only in rare instances." Tallman wrote. He was joined by Judges Johnnie Rawlinson, Jay Bybee, Consuelo Callahan and Milan Smith.
     "The record demonstrates that Frost was afforded the opportunity to present his primary defense - duress - and the state was not relieved of its burden to prove Frost guilty beyond a reasonable doubt," Tallman added. "Because the Washington Supreme Court's decision is neither contrary to nor an unreasonable application of Supreme Court law as set forth in Herring, Frost is not entitled to habeas relief."