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Zapata v. Vasquez

United States Court of Appeals for the Ninth Circuit
788 F.3d 1106 (2015)
ELI5:

Rule of Law:

A defense counsel's failure to object to a prosecutor's repeated, fabricated, and highly inflammatory remarks during closing arguments constitutes ineffective assistance of counsel when there is no conceivable tactical reason for the silence and the evidence of guilt is weak.


Facts:

  • In May 2001, Juan Trigueros, a 19-year-old student, was shot and killed at a 7-Eleven in Gilroy, California, an area controlled by the Norteños street gang.
  • At the time of his death, Trigueros, a first-generation Mexican immigrant, was wearing a jersey with the number 8, the identifying symbol of the rival Sureños gang known as Eighth Street.
  • Paul Zapata was a member of the Outside Posse (OSP), a Norteño clique with a history of animosity toward Mexican nationals and Eighth Street gang members.
  • The only eyewitness to the shooting, Brian Puphal, described the shooter as having a 'scraggly goatee' but was unable to identify Zapata in a photographic lineup.
  • Zapata's ex-girlfriend, Nancy Echeverría, called a police tip line 18 months after the murder to implicate Zapata, but later testified at trial that her motive was to 'burn' him for breaking up with her.
  • Another witness, Sarah Sanchez, testified that Zapata confessed to her that he had 'shot up somebody at 7-Eleven,' though her testimony contained inconsistencies and she admitted to harboring ill will towards Zapata.
  • Several defense witnesses testified that Zapata was incapable of growing a goatee, contradicting the eyewitness description.
  • Witness testimony about the getaway vehicle, a white pickup truck, was conflicting regarding its make and model.

Procedural Posture:

  • In 2004, a jury in California state court convicted Paul Zapata of first-degree murder.
  • Zapata appealed to the California Court of Appeal, which affirmed the conviction in a reasoned opinion.
  • The California Supreme Court denied Zapata's petition for review.
  • Zapata then filed a federal habeas corpus petition in the U.S. District Court.
  • The district court denied the habeas petition but granted a limited certificate of appealability.
  • Zapata, as the appellant, appealed the district court's denial to the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does a defense attorney's failure to object to a prosecutor repeatedly inventing inflammatory and ethnically charged epithets and attributing them to the defendant during closing rebuttal constitute ineffective assistance of counsel in a case with weak and conflicting evidence?


Opinions:

Majority - Fisher, Circuit Judge

Yes. A defense attorney's failure to object to a prosecutor's fabricated and inflammatory ethnic slurs during closing rebuttal constitutes ineffective assistance of counsel under the Strickland standard. The performance was deficient because there was no conceivable strategic reason not to object to such egregious misconduct, and it was prejudicial because the evidence against the defendant was weak and riddled with inconsistencies. The prosecutor invented a 'pure fiction' by ascribing hateful ethnic slurs to Zapata as the victim's last words, which served no purpose other than to inflame the jury's passions. This misconduct was particularly harmful because it occurred during rebuttal, leaving the defense with no opportunity to respond, and the state court's conclusion to the contrary was based on an unreasonable determination of the facts regarding the strength of the evidence.



Analysis:

This decision clarifies the threshold for what constitutes ineffective assistance of counsel regarding prosecutorial misconduct, particularly under the deferential AEDPA standard. The court found that even under 'doubly deferential' review, a state court's conclusion can be deemed unreasonable if it is based on a clear mischaracterization of the factual record, such as overstating the strength of the prosecution's case. The ruling establishes a strong precedent that a failure to object to fabricated, inflammatory, and racially charged arguments is not a defensible trial strategy. It underscores that the prejudicial effect of such misconduct is magnified in cases where the evidence of guilt is weak and circumstantial, making it more likely that the jury's verdict was based on emotion rather than evidence.

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