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Name: Gill v. Ayers
Case #: 01-55808
Court: US Court of Appeals
District 9 Cir
Opinion Date: 03/06/2003
Subsequent History: Rehearing: opn. withdrawn on 8/28/03

Gill’s 1976 prior conviction for assault with force likely to produce great bodily injury could only count as a “strike” in his current proceeding upon a finding that he had personally used a dangerous weapon during the assault. At his sentencing, the court considered documentation from the record of the conviction, including Gill’s own statements as paraphrased in a probation report, but refused to allow him to testify to explain the statements attributed to him. The federal appellate court here reversed. The court’s decision denying Gill the right to testify violated his Fourteenth Amendment right to due process. Further, the error was not harmless. The probation report which paraphrased Gill’s statements asserted that Gill had personally used a baseball bat as a deadly weapon. Gill asserts that he made those statements in an attempt to appear conciliatory and contrite when it would have made no difference on his sentence. Although it is unknown whether the sentencing court would have believed his testimony, if it had, the testimony would have refuted the allegation of personal weapon use. Gill was entitled to have the sentencing court hear that testimony.