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Name: Deck v. Jenkins
Case #: 13-55130
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/29/2014

Conviction for attempted lewd act on child reversed where prosecutor misstated intent required for crime during argument. Deck, a California Highway Patrol officer, was convicted of attempted lewd act on a minor, after he was caught in an Internet sting operation. The State court affirmed his conviction and he sought federal habeas relief on the ground of prosecutorial misconduct. Held: Reversed. Deck’s jury was instructed regarding the California law of attempted lewd act on a child. His defense was that he lacked the mental intent to engage in a lewd act on the date he arranged to meet with the fictitious minor. In rebuttal argument, the prosecutor stated this did not matter, that an intent to engage in a lewd act at some point in the future, would suffice for an attempt. The California Court of Appeal agreed this was misconduct, but found it to be a “lone statement” which was harmless in light of the instructions given. A prosecutor’s misleading argument to a jury may result in a federal constitutional violation if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Darden v. Wainwright (1986) 477 U.S. 168.) Here, the prosecutor’s misstatements were a direct rebuttal to the heart of the defense case. The court did not correct the misstatements and its instructions did not specifically address the temporal issue which was the gravamen of the prosecutor’s misstatements. The misstatements were constitutional trial error, which requires reversal if it had a substantial, injurious effect on the jury’s verdict. (Brecht v. Abrahamson (1993) 507 U.S. 619 [because it is stricter, the Brecht standard subsumes the AEDPA standard for determining prejudice of a constitutional violation (Fry v. Pliler (2007) 551 U.S. 112)].) The misstatements create grave doubt regarding whether they had such an effect, requiring reversal.