New opinion — Third Circuit affirms in a difficult habeas case

Johnson v. Lamas — habeas corpus — affirmance — Rendell

When William Johnson was tried in Philadelphia for murder, his co-defendant refused to testify against him, so the prosecution just introduced the co-defendant’s earlier statement implicating Johnson. That violated Johnson’s Confrontation Clause right, the Third Circuit said and the Commonwealth conceded, but on Friday the court affirmed anyway because it held that it was not unreasonable for the state court to rule that the error was harmless. Actually, the state court only addressed whether the error prejudiced the defendant and could not have influenced the outcome of the case, and I’m not sure the panel was correct at fn.21 to treat that as a decision on whether state proved the error was harmless beyond a reasonable doubt. But that’s a byzantine habeas issue and it’s not obvious whether a different analysis would have changed the outcome.

The Third Circuit also rejected Johnson’s argument that the prosecutor violated due process by insisting that the co-defendant take the stand even though the prosecutor knew he would refuse to testify. The state court had denied this claim, and the Third Circuit said: “We do not need to determine whether we owe deference to the Superior Court’s determination because we do not think the authorities Johnson relies upon clearly establish a due process violation.” I’m very skeptical that this reasoning is correct — I’m aware of no support for the idea that 2254(d)’s “clearly established” requirement still applies if the federal court does not owe deference to the state court decision, and the court does not cite any.

Rendell was joined by Fuentes and Krause. Arguing counsel were David Rudovsky of Kairys Rudovsky for Johnson and Catherine Kiefer of the Philadelphia DA’s office for the commonwealth. The argument was over a year ago.

Note: the court issued this opinion on Friday, but I was out of the office.

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