In this case a writ for habeas relief is granted based on faulty jury instructions. The reference to “ninja” is from the testimony of a seven year old. The court explains that this testimony “certainly could have [been] discredited” by the jury.
No. 07-56756, No. 08-55524
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
425 Fed. Appx. 617
Filed March 31, 2011
Before Circuit Judges: Fletcher, Berzon and Callahan. Judge Callahan dissented. The majority opinion explains:
key witness for the prosecution was Latrina Walker, Sherrors’s 24-year-old mentally-disabled sister, who testified that she had been drinking and smoking marijuana the evening of the murder. Additionally, Walker’s mother and aunt both testified that she was untruthful and unreliable. In light of these reasons to doubt her accuracy as a witness, the jury well could have chosen not to believe Walker’s account. FN6
FN6- A third witness, who was five years old at the time of the murder and seven at trial, testified that not only did he see blood on Sherrors’s shirt and shoes the night Foth was killed, but that he saw Foth dismembered by men with ninja swords. The jury certainly could have discredited him entirely as well.
No direct evidence linked Sherrors to Foth’s murder.
The dissent suggests that the instructional error was cured by the trial court’s instructions on the particular elements of the crimes charged and the beyond a reasonable doubt standard. See Dissent at 4. But these general instructions simply “could not overcome the misdirection of a specific instruction that permitted the jury to find an element of the crime without considering all the evidence.” Rubio-Villareal, 967 F.2d at 300.
the district court’s conditional grant of Sherrors’s petition for the writ of habeas corpus is AFFIRMED.