Prentiss Griffin v. Kelly Harrington ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRENTISS GRIFFIN, No. 12-57162
Petitioner-Appellee,
D.C. No.
v. 2:10-cv-08753-
VBF-SP
KELLY HARRINGTON, Warden,
Respondent-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted
June 6, 2013—Pasadena, California
Filed August 16, 2013
Before: Stephen S. Trott, Carlos F. Lucero,*
and William A. Fletcher, Circuit Judges.
Opinion by Judge Trott
*
The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
2 GRIFFIN V. HARRINGTON
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s grant of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
conviction based on ineffective assistance of counsel.
Although trial counsel knew that the only witness who
would identify petitioner as the shooter had decided to change
his testimony, counsel did not object when the witness took
the stand and answered questions on direct and cross
examination, all without taking an oath. Determining that
counsel’s failure to object constituted a waiver, the trial court
denied a subsequent objection to introduction of the witness’
taped, inculpatory statement to the police. The panel held
that the California Court of Appeal’s conclusion, that
counsel’s failure to make a timely objection was tactical and
not error, was objectively unreasonable and unsupported by
the factual record.
COUNSEL
Shira B. Seigle (argued), Deputy Attorney General, Kamala
D. Harris, Attorney General of California, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Jason C. Tran, Deputy Attorney
General, Los Angeles, California, for Respondent-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GRIFFIN V. HARRINGTON 3
Marilee Marshall (argued), Marilee Marshall & Associates,
Los Angeles, California, for Petitioner-Appellee.
OPINION
TROTT, Circuit Judge:
Petitioner Prentiss Griffin, a member of the Grape Street
Crips gang, was convicted by jury in the Superior Court of
Los Angeles County of the first degree murder of Dwin
Brooks, a member of a rival gang, the Bounty Hunter Bloods.
The jury acquitted him of shooting Waylon Walton, who was
shot but not killed during the same encounter. His sentence
was 90 years to life. On direct appeal, the California Court of
Appeal affirmed his conviction, reduced his sentence to 80
years to life, and subsequently denied his petition for a writ
of habeas corpus. The California Supreme Court denied
review.
Griffin then filed a petition for a writ of habeas corpus in
the Central District of California pursuant to 28 U.S.C.
§ 2254. The district court granted the petition, concluding
that Griffin had been the victim of ineffective assistance of
trial counsel as guaranteed by the Sixth Amendment; and that
California’s Court of Appeal’s application of the Strickland
v. Washington, 466 U.S. 668 (1984), standard was
unreasonable. 28 U.S.C. § 2254(d)(1). The district court
further concluded that the Court of Appeal’s factual findings
in support of its decision were unreasonable under
§ 2254(d)(2). We have jurisdiction over this timely appeal
pursuant to 28 U.S.C. § 1291, and we affirm.
4 GRIFFIN V. HARRINGTON
I
FACTS AND CIRCUMSTANCES
On March 5, 2005, someone shot and killed Dwin Brooks
during a confrontation in Los Angeles, California, involving
rival street gangs during which at least forty bullets were
fired from four different firearms. Some nine months later,
Fred Wilberger, then a federal prisoner, told a Los Angeles
police detective that the shooter was Prentiss Griffin. The
detective recorded Wilberger’s statement. Largely on the
basis of that statement, Griffin was arrested and charged with
Brooks’s murder. Wilberger was the only person who
claimed to be able to identify Griffin as the person who shot
Brooks.
By the time of Griffin’s trial, however, Wilberger had
decided to change his story. Before the prosecution called
him as a witness, Griffin’s attorney, Simon Aval, was aware
of Wilberger’s about-face. Aval also knew that given
Wilberger’s decision to repudiate his prior inculpatory
statement, the jury would most likely hear the recording of it
for the truth of the matter asserted pursuant to Cal. Evid.
Code §§ 770, 785, and 1235.
As predicted, the trouble began the moment Wilberger
took the stand. Here, we borrow from Magistrate Judge
Pym’s thorough Report and Recommendation to the district
court.
The clerk told Wilberger to raise his right
hand and read him the oath. Silence
apparently followed because the clerk then
said, “I need a response, an answer.”
GRIFFIN V. HARRINGTON 5
Wilberger said, “No.” The trial judge
thereafter removed the jury from the
courtroom and addressed the witness. The
following dialogue ensued:
Trial Judge: You have been told to swear to
tell the truth. Do you understand that?
Wilberger: Yes, Ma’am.
Trial Judge: How old are you?
Wilberger: 24.
Trial Judge: So you’re old enough to know
what the truth is, right?
Wilberger: Yes, Ma’am.
Trial Judge: All right. We’re going to
proceed with your testimony. Do you
understand that?
Wilberger: Yes, Ma’am.
The trial judge then instructed the prosecutor
to take Wilberger as a hostile witness and
proceed with questioning.
Direct examination commenced.
Petitioner’s trial counsel did not object prior
to the direct examination of Wilberger. On
direct examination by the prosecutor,
Wilberger answered every question, but
6 GRIFFIN V. HARRINGTON
denied all knowledge of petitioner and the
shooting, and also denied having ever
identified petitioner to the police. Petitioner’s
counsel cross-examined Wilberger with just
two questions: had he ever seen petitioner
before, and had he seen petitioner on March 5,
2005. Wilberger answered “No” to both
questions and was excused as a witness.
The following morning before the jury
was brought out, the trial court discussed with
counsel the recording of the conversation
between Wilberger and Detective Weber, the
police detective who conducted the interview
where Wilberger identified petitioner as the
shooter, ordering that a portion of it be
deleted. The prosecutor said she planned on
playing the tape by recalling Detective Weber
the following morning, since she needed time
to edit the tape and Detective Weber was
already ready to take the stand that morning.
The examination of Detective Weber
commenced. Without explanation for the
change in schedule, the prosecutor asked the
detective about his interview with Wilberger
to begin laying the foundation to introduce the
tape. Cal. Evid. Code[] § 1235. At this point,
petitioner’s counsel asked to go on record at
sidebar. Petitioner’s counsel said, “I just want
to object for the record for the tape coming in
because Mr. Wilberger didn’t give us any
sworn testimony yesterday.” The prosecutor
was flummoxed by the objection, saying she
GRIFFIN V. HARRINGTON 7
did not know the law in this area and that the
objection was not something she expected
from counsel. The prosecutor asked first if
she could take a recess to research the law on
point and second whether Mr. Wilberger
could be recalled to re-administer the oath to
him. The trial court denied the request to
recall Mr. Wilberger, as the trial court was
skeptical that Wilberger would then take the
oath when he previously refused, and stated it
would not recall Wilberger unless the
prosecutor knew he would take the oath.
Following a recess, the prosecutor argued
and the trial court agreed that petitioner’s
counsel had waived the objection by not
objecting immediately and by conducting a
cross examination. As part of this discussion,
both the trial court and the prosecutor pointed
out that petitioner’s counsel made no previous
objections to the oath-taking, and petitioner’s
counsel did not dispute this, although he did
dispute the legal conclusion that this
amounted to a waiver of the objection.
Evidence of Wilberger’s statement to the
police was then put in evidence. In that taped
statement, Wilberger told detectives that he
saw the shooter, he thought the shooter’s
name was “Prentiss,” and he believed the
shooter could be either of two persons in a
poor-quality photo six pack he was shown.
8 GRIFFIN V. HARRINGTON
II
GRIFFIN’S DIRECT APPEAL
Prentiss was convicted. On appeal, the California Court
of Appeal affirmed his conviction. The court said,
Every witness is required to take an oath, or
affirm, that he will testify truthfully. (Evid.
Code[] § 710). It is not unconstitutional to
receive unsworn testimony in evidence, but if
a timely objection is made on that ground, the
testimony is not evidence within the meaning
of the Evidence Code. (In re Heather H.
(1988) 200 Cal. App. 3d 91, 95–96.)
Focusing on Aval’s failure timely to object to Wilberger’s
testimony, the court refused to consider Griffin’s claims (1)
that trial counsel’s objection to Wilberger’s testimony was
indeed timely, and (2) that his prior inculpatory statement to
the police was therefore inadmissable. The court said,
“Because defense counsel did not object to Wilberger’s
testimony due to the oath taking issue but instead went on to
cross-examine him, any objection to Wilberger’s testimony
was waived. . . . Because Wilberger’s unsworn testimony
became evidence due to this waiver, it necessarily follows
that impeachment of that evidence was allowable.”
The court left for another day Griffin’s Strickland attack
on the performance of his trial counsel.
GRIFFIN V. HARRINGTON 9
III
GRIFFIN’S STATE HABEAS PETITION
When that day came, the Court of Appeal denied Griffin’s
state petition, albeit in a divided opinion. The majority
concluded that Aval “had a credible tactical reason for failing
to object” to Wilberger’s testimony. The majority determined
that “Aval knew he was waiving his objection but elected to
cross-examine Wilberger in order to obtain the advantages or
avoid the ill effects described in his declaration.” The
majority also said, “We must accord Aval’s tactical decision
great deference in order to avoid second-guessing counsel’s
tactics and chilling vigorous advocacy by tempting defense
counsel to defend themselves rather than their clients during
trial.” The majority further speculated that Aval must have
believed that “a well-timed objection and motion to strike
would have ultimately resulted in Wilberger stating the final
words necessary to constitute the taking of the oath.”
In dissent, Justice Flier saw Aval’s failure to object not as
a reasonable tactical decision, “but an error,” a conclusion
Justice Flier believed to be “objectively supported by the
record.” She also said,
Aval knew that Wilberger was a reluctant
witness and that he was likely to recant his
statements to the police. There is no doubt
that Aval knew that the prosecution was ready
for this and could impeach Wilberger with a
prior inconsistent statement. Given these hard
facts, if there was a lawful way of preventing
Wilberger from testifying, defense counsel
had to act to accomplish that objective. An
10 GRIFFIN V. HARRINGTON
appropriate, lawful and unimpeachably
correct objection to Wilberger’s testimony
was his refusal to testify under oath.
The majority concludes that the record
indicates that Wilberger was close to agreeing
to take the oath and that the record “can
reasonably be construed as at least indicating
Wilberger’s assent to the oath.” Neither of
these conclusions is borne out by the record.
In the first place, Wilberger flatly refused to
take the oath and there is nothing to indicate
that he ever entertained changing his mind.
Secondly, the fact that he admitted in response
to the court’s question that he was old enough
to know what the truth is reveals nothing
about his state of mind. It is very hard to
imagine that anyone would have answered
that question differently, especially when the
question is asked by a judge, and the answer
is therefore completely neutral and devoid of
content or significance. Certainly, hard upon
the heels of that answer came the court’s flat
statement that “[w]e’re going to proceed with
your testimony,” which means that there was
no attempt to discover what Wilberger’s state
of mind was, other than that he refused to take
the oath as a witness. In other words, the only
significant fact revealed by the record is that
Wilberger unequivocally refused to take the
oath and nobody tried to change his mind.
GRIFFIN V. HARRINGTON 11
IV
FEDERAL HABEAS STANDARDS
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) mandates that federal habeas relief
[s]hall not be granted with respect to any
claim that was adjudicated on the merits in
state court proceedings unless the adjudication
of the claim —
(1) resulted in a decision that was contrary to,
or involved an unreasonable application
of, clearly established federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the state
court proceedings.
28 U.S.C. § 2254(d).
This statute limits our authority to grant a federal writ by
establishing two “highly deferential” standards. Premo v.
Moore, 131 S. Ct. 733, 740 (2011). “The pivotal question is
whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below
Strickland’s standard.” Harrington v. Richter, 131 S. Ct. 770,
785 (2011). Thus, a state court’s determination that a claim
lacks merit bars federal habeas relief so long as “fairminded
12 GRIFFIN V. HARRINGTON
jurists could disagree” on the state court’s decision.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Moreover, to grant a habeas petition under § 2254(d)(2), a
state court’s factual findings must be “clearly erroneous,” not
just merely debatable. Torres v. Prunty, 223 F.3d 1103,
1107–08 (9th Cir. 2000). These stringent standards “guard
against extreme malfunctions in the state criminal justice
systems, not as a substitute for ordinary error correction
through appeal.” Richter, 131 S. Ct. at 786 (internal
quotation marks omitted).
V
ANALYSIS
Although we review de novo the district court’s decision,
we conclude it was correct. We have no doubt from the
record and from Aval’s declaration that he knew during
Wilberger’s testimony that his statements in court — in
Aval’s words — “were made without any oath [and] could
not technically be considered evidence.” What Aval did not
know and what he did not comprehend under settled state
law, however, was that by failing timely to object to that
testimony in combination with conducting cross-examination,
he was waiving any objection he might have had to
Wilberger’s testimony. The dire consequences of his
ignorance on this point was first, that Wilberger’s prior
inconsistent inculpatory statement then became admissible
against his client; and second, that his client would be barred
on appeal from raising any issue related to Wilberger’s sworn
testimony. We repeat the California Court of Appeal’s
holding on direct appeal: “Because defense counsel did not
object to Wilberger’s testimony but instead went on to cross-
GRIFFIN V. HARRINGTON 13
examine him, any objection to Willberger’s testimony due to
the oath taking issue was waived.”
Thus, by waiting to object until after Wilberger had been
excused as a witness, and until the next day, Aval unwittingly
sealed his client’s fate, both at the trial and on appeal. He
subsequently admitted that his failure immediately to object
was a mistake because he thereby failed “to preserve the
question for Mr. Griffin’s appeal.”
Defense counsel’s egregious error in failing timely to
block Wilberger’s “testimony” and thus his prior inculpatory
statement was aggravated by counsel’s knowledge going into
the case that Wilberger would most probably recant the
statement, leaving his prior statement as the only evidence in
the case identifying Griffin as Dwin Brooks’s killer. Thus, by
not making a timely objection to Wilberger’s testimony, Aval
lost any opportunity to protect his client against the only
evidence that named him as Brooks’s killer. In effect, his
failure inured to the benefit of the prosecution by erasing a
serious impediment in its plan to use Wilberger’s prior
statement.
Accordingly we conclude that the California Court of
Appeal’s conclusion that Aval’s decision not to object in a
timely fashion was acceptably tactical and not error was
objectively unreasonable. It is one thing to devise a litigation
tactic that fails. That is a common occurrence in the
courtroom. It is wholly another matter to devise a tactic
without realizing not only that it cannot work, but that it will
result in permanently depriving your client of the one
opportunity he has to render inadmissable the prosecution’s
only direct evidence linking him to the murder with which he
is charged. With all respect, the state court’s strained
14 GRIFFIN V. HARRINGTON
reasoning runs afoul of the Supreme Court’s warning that
courts should “not indulge [in] post hoc rationalization for
counsel’s decisionmaking that contradicts the available
evidence of counsel’s actions.” Richter, 131 S. Ct. at 790(internal quotation marks omitted). The Court of Appeal’s
ruling was “beyond any possibility for fairminded
disagreement.” Id. at 787.
To add injury to injury, the damaging effect of trial
counsel’s waiver at trial has now carried over into his client’s
federal habeas proceedings, blocking him from raising
substantial federal constitutional issues. We refer again to
Magistrate Judge Pym’s report:
Because petitioner’s trial counsel waived
his confrontation right by failing to timely
object to Wilberger’s unsworn testimony,
petitioner is not entitled to habeas relief based
on his Confrontation Clause challenge. And
given the absence of a confrontation violation,
there is no basis for the court to find a due
process violation either. Put simply, the
admission of this unsworn testimony –
without any objection to its admission from
either counsel, and thus not in violation of
either California evidentiary rules or the
Confrontation Clause – did not render the trial
fundamentally unfair. And at a minimum,
given the absence of any objection prior to the
admission of Wilberger’s testimony, this court
does not find that the California courts
unreasonably applied controlling Supreme
Court law or unreasonably determined the
GRIFFIN V. HARRINGTON 15
facts in implicitly rejecting petitioner’s due
process claim.
The predictable fallout from counsel’s error could hardly
have been more catastrophic.
VI
THE COURT OF APPEAL’S FACTUAL FINDINGS
We are fully convinced that the California Court of
Appeal’s factual determinations weighing on this issue were
plainly unsupported by the record and thus demonstrably and
clearly erroneous. The majority of the Court of Appeal in
concluding that Aval’s decision not to object was a valid
tactic opined that Aval believed that a timely objection to
Wilberger’s unsworn testimony would “have ultimately
resulted in Wilberger stating the final words necessary to
constitute the taking of the oath.” Aval did not so state in his
declaration, and the factual record simply does not support
such speculation.
Furthermore, the record suggests that the prosecutor, Ms.
Brako, may have attempted to call Wilberger back to the
stand to take the oath, but that he refused. This according to
the trial transcript is what happened.
Ms Brako: Well, I understand Mr.
Wilberger is still in custody, and I’d ask the
court to bring him back out.
The Court: For what reason? He’s already
refused to testify. As far as I know, he was let
go.
16 GRIFFIN V. HARRINGTON
Ms. Brako: Well, he was released but he’s
still in custody. He was released from this
court’s proceeding.
The Court: Do you have any reason to
believe he’s going to take the oath?
Ms. Brako: Well, we can administer it
again. I mean, I’m asking the court for a brief
recess in this instance to do that. He did
testify. He was given the oath.
The Court: I’m not bringing him up unless
you know he’s going to take the oath. That’s
number one. Number two, you have to find
out what the law is.
Ms. Brako: I understand that. I wasn’t
prepared for that objection. Counsel just
brought this up at side bar midway through.
He didn’t indicate that’s what he was going to
do.
(Emphasis added).
The court then took a recess. When court resumed, the
prosecutor did not have Mr. Wilberger in tow, or renew her
request that he be brought back to the courtroom, deciding
instead to argue waiver. Her argument was successful, and
Wilberger’s prior statement was placed before the jury.
These events markedly undercut the Court of Appeal’s
speculation that if pushed Wilberger might well have acceded
to the oath. It is more probable that the prosecutor did not ask
GRIFFIN V. HARRINGTON 17
to bring him back to the courtroom because, as the court said
to her, “I’m not bringing him up unless you know he’s going
to take the oath.” The record suggests he was pushed but did
not move.
Equally unsupported by the factual record is the Court of
Appeal’s finding that Aval “knew he was waiving his
objection . . . .” With the utmost respect to our state court
colleagues, the record supports the opposite conclusion, i.e.
that Aval simply did not understand the consequences of his
choice. His decision to cross-examine Wilberger to get him
to acknowledge what he had already said paved the way for
his damning statement.
In any event, as we have explained in Part IV, even if the
Court of Appeal’s unsupportable speculation about what Aval
believed was correct, such a belief on counsel’s part would
nonetheless amount to ineffective representation well below
the Strickland standard because it was not informed by the
legal consequences of doing nothing: waiver. Because of the
potential for waiver, he did not have the option he thought he
had of remaining silent until the next day, a consequence
overlooked by the Court of Appeal in its analysis, an
oversight which renders that analysis unreasonable.
VII
PREJUDICE
The Court of Appeal then assumed, “for discussion’s sake
only that Aval’s failure to object was not reasonable . . . ,”
noting that Griffin nevertheless was still “obliged to prove by
a preponderance of the evidence that a more favorable
outcome was reasonably probable had a timely objection been
18 GRIFFIN V. HARRINGTON
made.” The court concluded that Griffin had failed to carry
his burden of proof on this issue because “[a]s noted above,
the trial court came close to having Wilberger acknowledge
his obligation to testify honestly. That fact alone tilts the
scale in favor of a conclusion that Wilberger would have
taken the oath had the court phrased its inquiry more
precisely.”
With all respect to the Court of Appeal’s majority, the
factual record contradicts its scale-tilting “fact” that
Wilberger would have mouthed acceptance of the oath if he
had been pushed. As the Court of Appeal’s dissenter
correctly observed, “[i]n the first place, Wilberger flatly
refused to take the oath and there is nothing to indicate that he
ever entertained changing his mind. Secondly, the fact that
he admitted in response to the court’s question that he was
old enough to know what the truth is reveals nothing about
his state of mind.”
In their opinion, the court majority accused Griffin of
asking them “to speculate” that Wilberger would have
persisted in refusing to take the oath. However, it was the
Court of Appeal majority — not Griffin — that indulged in
speculation in the face of strong evidence to the contrary.
Certainly the trial judge did not believe he would agree to the
oath. Moreover, notwithstanding the prosecutor’s request to
bring him back to the courtroom, she did not do so after the
court told her not “unless you know he’s going to take the
oath.” Accordingly, we conclude that the factual record more
than adequately supported Griffin’s position, and that the
court’s finding — as previously discussed in Part VI of this
opinion — was clearly erroneous and objectively
unreasonable.
GRIFFIN V. HARRINGTON 19
As a fall back position, the Warden now argues that the
People’s evidence against Griffin was such as to support his
conviction “even had an objection led to the complete
exclusion of Wilberger’s testimony and his prior inconsistent
statement.” We emphatically disagree. It is as simple as this:
Wilberger’s disclaimed prior inconsistent statement
constitutes the only evidence in the prosecution’s case that
“Prentiss” was the shooter. Without this evidence, the
prosecution had little other than (1) Griffin’s presence at the
scene, (2) a possible motive arising out of his membership in
a rival gang, and (3) his access to a firearm. That’s it. This
evidence might serve as corroboration of Wilberger’s
statement, but standing along, it could not support a guilty
verdict. Brooks’s girlfriend, Nartrella Williams, put Griffin
at the shooting, but she did not see Griffin with a gun that
night, much less see him shoot one at anyone, including her
boyfriend. She told the police that “[m]ore than one person
was shooting.” By the time of the trial, she did not believe
Griffin shot Brooks. Neither did Georgetta Chevalier,
another witness to the gunfire. She named others whom she
saw firing guns, including “Diamond, Tweeter, and Doodles
or Little One,” but said that Griffin was not one of the
shooters she saw. Waylon Walton, also shot at the scene, was
certain that he did not see Griffin the night of the attack.
Here, we note that the prosecution did not rely on a theory
that Griffin aided and abetted whomever might have fired the
fatal shot, choosing instead to go after him directly.
On top of these glaring deficiencies in the prosecution’s
case, no physical evidence linked Griffin to the crime. A
criminologist eliminated a gun he was carrying when he was
arrested as one of the guns fired the night of the shooting.
20 GRIFFIN V. HARRINGTON
Not only do we conclude that there is a reasonable
probability that the jury would have come to a different
conclusion without Wilberger’s recorded statement, but
because the prosecution’s case was so weak without
Wilberger, we doubt that Griffin would have been charged
with the murder in the first place. After all, a year went by
after the shooting before Griffin was charged. What was it
that caused Griffin’s arrest? Wilberger’s statement taken
almost nine months after the murder. Before Wilberger’s
statement to Detective Weber, Weber testified that Griffin
had not even been identified as a possible suspect: “I
remembered . . . [that] there was a Prentiss in the book, but I
had really not looked at Prentiss.” As the media frequently
says, Wilberger was the prosecution’s “star witness,” at least
in what he said to Detective Weber, if not on the stand.
Finally, the prosecution makes much about an ambiguous
statement Griffin made after his arrest that he thought he was
being taken to a police station near where the murder
occurred. The prosecution tries to stretch this utterance into
an admission of guilt, but the inference the prosecution asks
us to draw is not reasonable in the absence of Wilberger’s
testimony.
VIII
CONCLUSION
In summary, under state law, Aval’s only viable move
was to lodge a timely objection to Wilberger’s testimony.
Aval did not have the option of proceeding with cross-
examination and then waiting until the next day to try to
block Wilberger’s prior statement. The proof of this sour
pudding came in the form of the trial court’s adverse ruling
GRIFFIN V. HARRINGTON 21
when he did object to Wilberger’s statement, and then the
Court of Appeal’s decision affirming his client’s conviction
on the ground that Aval was required to object but did not.
To quote again from Magistrate Judge Pym’s report,
Confrontation Clause rights may be
waived by the actions of counsel alone. In
some circumstances, a deliberate waiver by
counsel of these rights would be a sound
tactical decision. But it is not reasonable
under prevailing professional norms to
unwittingly waive a defendant’s core
constitutional rights [of confrontation], as
apparently happened here. And given what
was at stake with the failure to object in this
instance, it could not have been a reasonable
tactical decision.
We are mindful from experience how difficult it is to
resolve in court the mayhem caused in our cities by gangs.
Also, we do not overlook Griffin’s prior record for violence,
a record that explains the severity of his sentence.
Nevertheless, gang members, like everyone else, are entitled
under our Constitution to effective representation of counsel.
AFFIRMED.