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Name: Zapien v. Martel
Case #: 09-99023
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/09/2015

No clearly established U.S. Supreme Court precedent supported defendant’s claim that the prosecution’s destruction of a defense audio tape with attorney-client work product violated his due process rights. During Zapien’s special circumstance murder trial, the prosecutor and his investigator discovered a sealed envelope with Zapien’s trial counsel’s name written on the outside. It contained an audio tape explaining the defense’s strengths and weaknesses. The prosecutor told the investigator to listen to the tape, but the investigator said he destroyed it instead. Zapien’s counsel moved for a dismissal, which the trial court denied. The jury convicted Zapien and sentenced him to death. His state appeal and state habeas petition were unsuccessful. He filed a federal habeas petition, which the district court denied. He appealed on a number of grounds, including that his due process rights were violated under California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51 when the investigator destroyed the defense strategy tape. Held: Affirmed. Trombetta and Youngblood dealt with the destruction of potentially exculpatory evidence—not, as here, the destruction of attorney-client work product. Zapien, however, argued that destruction of the tape was destruction of exculpatory evidence because the tape could have been tested to determine whether the prosecution had listened to it and, if the prosecution had listened to it, then misconduct occurred. The misconduct would have required the case be dismissed. The Ninth Circuit disagreed, reasoning that Zapien’s claim was not “clearly established,” by Youngblood, Trombetta, or any other U.S. Supreme Court case. The court noted that the claim was “more readily cognizable as a violation of [Zapien’s] right to counsel under the Sixth Amendment,” but such a claim is not clearly established by the U.S. Supreme Court.

Trial court did not unreasonably apply Ohio v. Roberts by admitting unavailable witness’s preliminary hearing testimony. Zapien also argued that his rights under the confrontation clause were violated when the trial court admitted a witness’s preliminary hearing testimony after she refused to testify at trial. Under the governing standard at the time of Zapien’s trial, an adequate opportunity to cross-examine a witness at a preliminary hearing typically provides “sufficient indicia of reliability” for statements from that hearing to be introduced at trial if the witness is unavailable. (Ohio v. Roberts (1980) 448 U.S. 56, abrogated by Crawford v. Washington (2004) 541 U.S. 36.) According to Zapien, the state court unreasonably applied Roberts because the government knew the witness told lies during portions of the preliminary hearing testimony that was not read to the jury. The Ninth Circuit rejected that argument. “Preliminary hearing testimony falls within the heartland of those statements deemed reliable under Roberts” and Zapien could not point to any case where “admitting preliminary hearing testimony has been held to violate the Confrontation Clause solely because other testimony by the absent witness is untrue.”