Perfect and Imperfect Self Defense Argument

In Musladin v. Lamarque (9th Cir. 2005) 403 F.3d 1072, Musladin had been charged with murdering his estranged wife's fiance in an argument, during which he admittedly fired a gun in the fiance's general direction. ( Id. at p. 1073.) Musladin argued perfect and imperfect self-defense, contending that there was no crime and no victim involved. During each of the 14 days of his jury trial, the deceased's family sat in the front row of the gallery, directly behind the prosecution and in clear view of the jury, with at least three family members at a time wearing "very noticeable" buttons several inches in diameter on their shirts displaying the deceased's photograph. Before opening statements, the court denied Musladin's request that it instruct the family members to refrain from wearing the buttons in court. (Ibid.) Musladin, after he was convicted of first degree murder and related offenses and sought reversal in state court without success, filed a petition for writ of habeas corpus in federal district court arguing that the state court had unreasonably applied clearly established federal law in violation of the Antiterrorism and Effective Death Penalty Act (which is not at issue in the present case) in determining that his rights to a fair trial had not been violated by the family members' display of buttons. His petition was denied, and he appealed to the Ninth Circuit. ( Musladin, supra, 403 F.3d at p. 1073.) The Ninth Circuit agreed that the state court had unreasonably applied the federal law "that certain practices attendant to the conduct of a trial can create such an 'unacceptable risk of impermissible factors coming into play,' as to be 'inherently prejudicial' to a criminal defendant ... ." ( Musladin, supra, 403 F.3d at p. 1074.) The court found that the state appellate court, although it had cited Norris v. Risley (9th Cir. 1990) 918 F.2d 828, 830-831, supra, 918 F.2d 828, for the relevant law, nonetheless had misapplied Norris in two regards. First, the state court should not have distinguished the facts between the two cases because they could not "reasonably be distinguished." ( Musladin, supra, 403 F.3d at p. 1076.) In fact, the Musladin court found the message delivered by the Musladin buttons to be "substantially more direct and clear" than those in Norris because "the direct link between the buttons, the spectators wearing the buttons, the defendant, and the crime that the defendant allegedly committed was clear and unmistakable." ( Musladin, at p. 1077.) "The primary issue at Musladin's trial was whether it was the defendant or the deceased who was the aggressor. The buttons essentially 'argue' that the deceased was the innocent party and that the defendant was necessarily guilty; that the defendant, not the deceased, was the initiator of the attack, and, thus, the perpetrator of a criminal act." (Ibid.) The Musladin court rejected the state court's conclusion that the buttons "were 'unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of a family member' " because under the "particular facts and issues before the jury ... . a reasonable jurist would be compelled to conclude that the buttons worn by the deceased's family members conveyed the message that the defendant was guilty, just as the buttons worn by spectators in Norris did in that case." (Ibid.) Second, the Musladin court found that the state appellate court had added a legal requirement not present in federal law because, although the state court considered " 'the wearing of photographs of victims in a courtroom to be an "impermissible factor coming into play" ' " ( Musladin, supra, 403 F.3d at p. 1076), it found no federal law violation because the buttons had not "branded defendant 'with an unmistakable mark of guilt ... .' " (Ibid.) The Musladin court, after reviewing the relevant United States Supreme Court decisions, found that the state court "was unreasonable in imposing this additional requirement after it had concluded that the 'inherent prejudice' elements had already been fully established." (Musladin, at p. 1078.) The court concluded that "the state court, disregarding the consideration that the central question was one of self-defense ... ." and, in light of its misapplication of both the facts and law, acted in a manner that "was objectively unreasonable," which required reversal and remand for issuance of a writ of habeas corpus. ( Id. at p. 1079.)