Gardner v. Holland

Filing 28

ORDER FOR SUPPLEMENTAL BRIEFING (Illston, Susan) (Filed on 11/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JONATHAN MICAH GARDNER,

Case No. 15-cv-04695-SI

Plaintiff,
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v.

ORDER FOR SUPPLEMENTAL
BRIEFING

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KIM HOLLAND,

Re: Dkt. No. 27

Defendant.

United States District Court
Northern District of California

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On October 28, 2016, the court granted the petition for writ of habeas corpus on a

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Confrontation Clause claim. Respondent now moves to alter or amend the judgment. Respondent

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argues that the court’s harmless error analysis did not properly consider evidence that Gardner had

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“raped” another minor, Aaliyah Doe, and Gardner “obviously tailored his defense.” Docket No. 27

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at 3, 4. The court was aware of these two areas of evidence, but did not see them as having much

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weight in the harmless error analysis and therefore did not specifically discuss them. Before

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ruling on the motion to alter or amend the judgment, however, the court wants to hear further

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argument on two particular points.

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First, the court reads a key sentence in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986),

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to have a different meaning than respondent urges. Van Arsdall stated that, when a defendant has

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been deprived of his Confrontation Clause right to cross-examine a witness, the factors to consider

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in doing a harmless error analysis “include the importance of the witness’ testimony in the

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prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence

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corroborating or contradicting the testimony of the witness on material points, the extent of cross-

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examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”

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Id. at 684 (emphasis added). The court understands the italicized phrase to refer to the testimony

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of the witness who was not fully confronted, rather than to the testimony of other witnesses, such

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as the defendant. In other words, the court reads the phrase to mean the presence or absence of

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evidence corroborating or contradicting the testimony of the unconfronted witness on material

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points. Respondent’s argument at page 5 of his motion to alter or amend seems to read the

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italicized phrase as referring to testimony of the defendant. In his supplemental brief, respondent

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should provide up to four of his most helpful cases supporting his interpretation of the quoted

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sentence from Van Arsdall.
Second, the court is interested in hearing further about the use of a defendant’s own

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testimony in the harmless error analysis; specifically, whether an inconsistent or unbelievable tale

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from a defendant weighs in favor of finding harmless error, and how heavily it should weigh.

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United States District Court
Northern District of California

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Respondent may provide up to four of his most helpful cases applying or discussing the use of a

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defendant’s testimony in the harmless error analysis.

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Respondent must file his supplemental brief no later than November 21, 2016. Petitioner

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must file any opposition to the motion and supplemental brief no later than December 9, 2016.

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The briefs may not exceed eight pages in length. At the time respondent files his supplemental

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brief, respondent also must mail to petitioner a copy of each case cited in his motion and

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supplemental brief.

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Finally, respondent asks that the court reset the 90-day deadline for the State to commence

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proceedings to retry Gardner so that the clock will start ticking on the date the court rules on the

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motion to alter or amend, rather than on the date of the order granting the petition for writ of

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habeas corpus. That request is GRANTED. The 90-day deadline will run from the date on which

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the court rules on the pending motion to alter or amend the judgment.

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IT IS SO ORDERED.
Dated: November 14, 2016
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SUSAN ILLSTON
United States District Judge

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