In this case of habeas petition on Los Angeles murder-for-hire, a “Ninja” was convicted based on out of court statements of an unavailable convicted co-conspirator. This is a 2008 appeal on a 1990 conviction of the ninja hitman. The murders in this case have been extensively covered in the press, see for example this 1988 Los Angeles Times article referring to the “Ninja Murders”. And see detailed narrative at TruTv.com, “The Ninja Murder Case” BY Tori Richards

ANTHONY JOSEPH MAJOY, Petitioner,
vs.
ERNEST ROE, Warden, Respondent.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
Case No. CV 98-6956-SVW (JWJ); 651 F. Supp. 2d 1065; 2008 U.S. Dist. LEXIS 112110

Decided March 5, 2008, Opinion by United States Magistrate Judge Jeffrey Johnson

STATEMENT OF FACTS

In 1983, brothers Neil and Stewart Woodman hired hitmen Steven and Robert Homick (also brothers) to murder the Woodmans’ parents. (Resp. Exh. 107, pp. 21-23, 26-27, 36-49, 63-64.) [FN2] The crime was to take place on the night of September 25, 1985, Yom Kippur. (Resp. Exh. 100, pp. 60, 100, 102-03.) The Woodman’s motive was to gain an advantage in a family business dispute (Resp. Exh. 107, pp. 15-21) and to collect on their mother’s $ 500,000 insurance policy — money they needed to pay off business debts (Id. at 15-18).

Late in the evening of September 25, 1985, the Woodman parents were shot and killed in the parking garage of their Brentwood apartment complex. Roger Backman, an independent witness, saw a black-clad individual, later referred to as the “Ninja,” fleeing the scene of the crime. [FN3]

== Footnotes ==
FN2 Unless otherwise specified, all citations to exhibits refer to those introduced by the parties at the evidentiary hearing.
FN3 The assailant was termed the “Ninja” after Mr. Backman described the suspect as wearing a black hooded outfit.

At petitioner’s trial, the prosecution argued that petitioner was the “Ninja” observed by Robert Backman.

After petitioner’s conviction, Stewart Woodman confessed his guilt in exchange for a promise that the prosecution would not seek the death penalty against him.

Here on appeal:

Petitioner argued, inter alia, that the following “new evidence” supported his procedural claim of actual innocence: Michael Dominguez, a key prosecution witness, recanted his testimony implicating petitioner; the police investigation involved questionable methods; the testimony of Robyn Lewis was impeached; and the testimony of Roger Backman likely excludes petitioner as the “Ninja.” (Proposed Findings, pp.18-47.)

Particularly,

petitioner points to the testimony of Roger Backman as evidence that petitioner could not have been the “Ninja.” As detailed above, Mr. Backman described the hooded assailant as resembling Michael Dominguez. While this evidence may suggest that petitioner was not the “Ninja” who came face to face with Mr. Backman, it does not prove that petitioner is innocent of the murders of Gerald and Vera Woodman. It is undisputed that the murders were carried out by more than one individual. In fact, Mr. Backman testified that while he saw the “Ninja,” he heard another individual running through the bushes. Thus, Mr. Backman’s description of the “Ninja” does not support a finding that petitioner was not a participant in the murders.

The Court dismisses the petition, finding that the petitioner cannot show his actual innocence. Ironically, the co-conspirator’s self-interested claims were credible for conviction but the his recantation is not credible for appeal.

None of the other “new” evidence presented by petitioner, without the support of a credible recantation by Dominguez, is sufficient to meet petitioner’s procedural claim of actual innocence.

This opinion was then supplemented and adopted by the District Court Judge Stephen Wilson, August 4, 2009:

ANTHONY JOSEPH MAJOY, Petitioner,
v. ERNEST ROE, Warden, Respondent.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
CV 98-6956 SVW (JWJx)
651 F. Supp. 2d 1065; 2009 U.S. Dist. LEXIS 70762

Petitioner contends that Dominguez’s recantation should be believed because Dominguez’s initial testimony was the result of police coercion by the Detectives. In his objections, Petitioner claims that the SSRR not only failed to adequately consider the effect of the alleged police coercion on jurors, but goes so far as to “sanction[] egregious police misconduct.” (Obj., at 16.) Specifically, Petitioner insists that the following evidence of Detective Holder’s unethical character was not presented to the jury in Petitioner’s case: (1) Detective Holder suborned perjury of a criminal informant (Siegel) at the first preliminary hearing for defendant Woodman; (2) the Detectives placed a photograph of Petitioner in front of Dominguez during the initial interview “so that [Dominguez] would identify [Petitioner] as the Ninja” (Id.); (3) Detective Holder called Deputy District Attorney John Krayniak a “wimp prosecutor” when Krayniak refused to put untruthful informant Sidney Storch on the witness stand (10/5/04 ERT 89); (4) the Detectives secretly entered into an undisclosed book rights agreement, presumably about the trial; and (5) after leaving the LAPD, Detective Holder obtained a court appointment as a phony expert witness or private investigator in the Woodman trial. (Obj., at 16.)

While Petitioner’s evidence regarding the Detectives may speak to the negative qualities of Detectives Holder and Crostley, and perhaps even suggest that they used questionable interviewing tactics, this evidence does not alter the Court’s conclusion with regard to the credibility of Dominguez’s new testimony. This evidence regarding the Detectives does not allow Petitioner to meet the “extraordinary” burden of a Schlup claim for two reasons. First, the jury watched the interview between the Detectives and Dominguez at trial and, as a result, the jury was given the opportunity to evaluate whether Dominguez was coerced. This Court must examine “new reliable evidence” while evaluating a Schlup claim. 513 U.S. at 324 (emphasis added). Thus, because the placement of the photographs was presented to the jury at trial, Petitioner’s objection standing alone would not cause a new jury to have reasonable doubts. Only Petitioner’s “new” evidence – such as the book deal – could be used in connection with a Schlup claim. Id.

Second, even though Petitioner identifies some other evidence, because Dominguez himself is not credible, this evidence would not cause all reasonable jurors to doubt Petitioner’s conviction. Had the Magistrate concluded that Dominguez was credible during the evidentiary hearings, the evidence of the Detectives’ negative character may have supplemented the Magistrate’s finding that Dominguez was credible. But given that the Magistrate found that Dominguez was not credible, the evidence of the Detectives’ character would not affect reasonable jurors viewing Dominguez’s recantation.

And:

E. Roger Backman’s Testimony

On the night of the murders, Roger Backman witnessed a black-clad “Ninja” outside the murder scene. The prosecutors used this information to claim that Petitioner was the Ninja. At Neil Woodman’s 1994 trial, however, Mr. Backman described the Ninja in such a way “arguably as not only to exclude the middle-aged [Petitioner,] but to implicate the youthful Dominguez.” [FN4] Majoy, 296 F.3d at 774.

== Footnotes ==
FN4 Mr. Backman testified that he identified Dominguez as the Ninja because it was the “most logical[]” choice based on Dominguez’s age, skin tone, and build. Majoy, 296 F.3d at 775.
===

In the SSRR, the Magistrate stated that even if Petitioner was not the Ninja, “Mr. Backman . . . heard another individual running through the bushes. Thus, Mr. Backman’s description of the ‘Ninja‘ does not support a finding that petitioner was not a participant in the murders.” (SSRR at 32-33.) Petitioner objects to the Magistrate’s finding that Petitioner could have been a “noise in the bushes.” (Obj., at 20.) Though the Court agrees with the Magistrate’s analysis of Mr. Backman’s testimony, the SSRR could arguably be interpreted as applying the incorrect standard of review by reaching what could be construed as a factual conclusion. This Court will therefore determine de novo how Mr. Backman’s testimony would affect reasonable jurors. See Majoy, 296 F.3d at 776.

Although Mr. Backman’s 1994 testimony might support Petitioner’s actual innocence claim, the Court concludes that this evidence would not have such an effect on reasonable jurors such that Petitioner would meet the Schlup burden. First, as with Ms. Lewis’s testimony, the California Court of Appeal did not give Mr. Backman’s testimony much weight. The Court of Appeal decision thoroughly analyzed the evidence, and the Court generally agrees with the Court of Appeal’s analysis. After listing the substantial corroborating evidence implicating Petitioner, the Court of Appeal stated: “Finally, independent corroboration [by Backman], no matter how slight in value it might appear to be when standing alone, implicated [Petitioner] in the conspiracy and murders.” People v. Majoy, No. B052619, 38 (Cal.Ct.App. Jan. 27, 1997). As the Court of Appeal decision illustrates, Petitioner’s conviction was based on ample corroborating evidence, which included Mr. Backman’s testimony, even though Mr. Backman’s testimony was of “slight” value. Because Mr. Backman’s testimony was of such slight value, this evidence would not have swayed reasonable jurors to such an extent to satisfy the Schlup actual innocence standard.

Second, in discussing Mr. Backman’s 1994 testimony, the Ninth Circuit stated that “Backman identified . . . the ‘Ninja‘ in such a way arguably as . . . to exclude the middle-aged [Petitioner].” Majoy, 296 F.3d at 774 (emphasis added). Though Mr. Backman’s statements “arguably” excluded Petitioner as the Ninja, there was nothing conclusive about his testimony at the subsequent trials. Mr. Backman admitted he only saw a small part of the Ninja‘s face “between . . . just above [the Ninja‘s] eyebrows and just below the tip of the nose” and that he therefore could not conclusively identify the man. Majoy, 296 F.3d at 775. Mr. Backman’s qualified statements would not cause all reasonable jurors to doubt Petitioner’s conviction.

Even assuming Mr. Backman conclusively exonerated Petitioner as the Ninja, without something more, such as substantial evidence of police coercion or clear reliability of Dominguez’s recantation – both of which are lacking – Petitioner cannot reach the standard that “no reasonable juror would have found [P]etitioner guilty beyond a reasonable doubt.” Majoy, 296 F.3d at 776.

Because the Court generally agrees with the California Court of Appeal that Mr. Backman’s identification of the Ninja was of little import in upholding Petitioner’s conviction, and because Mr. Backman did not conclusively exonerate Petitioner as the Ninja, Petitioner has failed to meet the heavy burden of a Schlup actual innocence claim.

Concluding:

Roger Backman could not conclusively prove Petitioner was not the Ninja; and, most importantly, Dominguez’s recantation lacked credibility. Because the Ninth Circuit remanded to this Court to determine the credibility of Dominguez’s recantation, and because this Court has determined it was not credible, Petitioner’s Schlup claim must fail. Accordingly, the Court adopts the Magistrate’s SSRR.

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