Carlson v. Att’y Gen. of Cal.

A defendant will be unable to confront his accusers if the court finds the defendant’s actions fall under the forfeiture-by-wrongdoing doctrine.

Leif Carlson, Sr. (“Carlson”) struck Leif Carlson, Jr. (“Leif Jr.”) in the face after correcting his guitar positioning. Step-son of Carlson, Joshua Barragan (“Joshua”) called officers to report the Carlson’s behavior. Officers responded to the call, whereupon Carlson was placed under arrest. Subpoenas were issued for Carlson’s wife, Lena Carlson (“Lena”), and his son, Leif Jr. At trial, however, Leif Jr. did not appear. Judge Grossman told Lena that she must produce her son the next morning, but neither Lena nor Leif Jr. appeared the next day. Judge Grossman indicated that if he found that Carlson was somewhat complicit in or encouraged the absence of both then the officer’s testimony would be introduced for the truth on the matter. The next day Judge Grossman ruled that Carlson had engaged in conduct to keep Lena and Leif Jr. from testifying. On appeal, the Ninth Circuit reviewed whether Carlson behaved in a manner that allowed for the lower court to admit the testimony of the police officer, explaining what Lena and Leif Jr. had told him, under the forfeiture-by-wrongdoing doctrine. The panel reasoned that if there has been an affirmative action by the defendant that produces a non-appearance by a witness against his crime, then the forfeiture-by-wrongdoing doctrine applies. While deference is given to the state court’s ruling, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) the panel may grant habeas corpus if it finds that the lower court was contrary to precedent on unreasonable under the circumstances. Given Carlson’s culpable conduct, the panel held that lower court was correct in its holding. Therefore, the panel affirmed the lower court and denied granting habeas corpus to Carlson. AFFIRMED.