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Did Victim's Photo Prejudice a Jury?

Another ruling by the liberal-leaning 9th Circuit comes under Supreme Court review.

September 18, 2006|David G. Savage | Times Staff Writer

WASHINGTON — For Jim Studer, wearing a button with a photo of his brother, Tom, was a simple way of bearing witness for him at the trial of Tom's accused killer, Mathew Musladin.

"He was my big brother, and he was very protective of me when I was a kid," Studer said.

Little did he think the buttons he and his parents wore to the trial in San Jose would nearly free the man convicted of Tom's murder -- or put the killer's case before the Supreme Court. But he had not considered that Musladin would someday have a chance to bring his case before the U.S. 9th Circuit Court of Appeals.

For years, the Supreme Court has cast a critical eye on the liberal-leaning 9th Circuit, particularly in cases involving crime and the death penalty. The justices will consider two of those cases soon after they return next month.

On the first day of Musladin's trial more than a decade ago, Studer and his parents, who had traveled from Missouri, sat in the front row of the courtroom, directly behind the prosecutor. Each wore a button with a photo of Tom.

Like the jury, they heard the facts of the case: On May 13, 1994, Musladin arrived early at the home of his estranged wife, Pamela, to pick up their 3-year-old son for a weekend visit. The two exchanged angry words, and Musladin threw her to the driveway.

When she called for help, her fiance, Tom Studer, and her brother, Michael Albaugh, came running. Musladin had a .45caliber pistol in his car and began shooting. Studer was hit in the back and crawled under a truck in the garage to escape. Musladin followed him and shot again, hitting him in the head and killing him.

Musladin also followed Albaugh into the house, but he hid in a bathroom. Pamela escaped over the fence to another house. Musladin was captured after a high-speed chase on U.S. 101.

When his case came to trial, Musladin claimed self-defense, saying that Pamela and her fiance were drug users and that he had feared for his life. The jury convicted him of first-degree murder and attempted murder, and he was sentenced to 32 years to life in prison.

There matters stood until the 9th Circuit heard his appeal last year. The 26-member court hears cases -- usually in three-judge panels -- from California and eight other Western states. It has some decidedly liberal judges, and Musladin's case came before two of them: Stephen Reinhardt of Los Angeles and Marsha S. Berzon of San Francisco.

In a 2-1 decision, the judges reversed Musladin's conviction, saying that the buttons worn by Studer's family deprived Musladin of a fair trial.

According to Reinhardt, the photo buttons -- described by the prosecutor as 2 inches in diameter and by Musladin's lawyer as 3 to 4 inches -- conveyed a "specific message."

"The buttons essentially 'argue' that Studer was the innocent party and that the defendant was necessarily guilty," Reinhardt said.

He continued: "A reasonable jurist would be compelled to conclude that the buttons worn by Studer's family members conveyed the message that the defendant was guilty."

That was not the view of the trial judge or the California state courts.

When a defense lawyer objected at the start of the trial and described the buttons as "inappropriate," the judge disagreed: "There is no legend on the buttons," he said. "I see no possible prejudice to the defendant."

It was noted that the prosecutor could have held up a photo of Studer for the jury to see. Had he survived the shooting, the victim could have sat in the courtroom himself.

The state appeals court also saw no harm.

"The simple photograph of Tom Studer was unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of a family member," its judges wrote in upholding Musladin's conviction.

Seven judges of the 9th Circuit objected to Reinhardt's opinion -- seven fewer than the majority needed for the full appeals court to review it.

"Musladin shall be released unless the state elects to retry him within 90 days," Reinhardt wrote in October 2005.

State prosecutors petitioned the U.S. Supreme Court, which voted to hear the case. Oral arguments are set for Oct. 11.

It is one of two Reinhardt opinions that the justices will consider in the first days of their new term.

The second reversed a death sentence handed down in 1982 for a man who broke into the home of a 21-year-old woman in the San Joaquin Valley, beat her to death with a metal dumbbell, stole her stereo and sold it for $100.

When Fernando Belmontes was caught, his accomplices testified against him. After his conviction, prosecutors told jurors of his violent past, including a recent brutal assault on his pregnant girlfriend.

Twenty-one years after the jury sentenced Belmontes to die, his federal appeal came before a three-judge panel that included Reinhardt and Richard A. Paez of Los Angeles. In a 2-1 decision, they reversed the death sentence on the grounds that jurors might not have taken into account "the defendant's potential for a positive adjustment to life in prison."

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