A Washington defendant whose lawyer was not allowed to argue simultaneous, but competing theories, to the jury has won reconsideration by the full 9th U.S. Circuit Court of Appeals.
A majority of the circuit’s 28 judges agreed Monday to reconsider an August appellate panel decision that allowed limits on defense closing arguments in an assault, robbery and burglary case against Joshua Frost.
In her dissent back in August, Judge Margaret McKeown called the limits imposed on Frost’s lawyer the “legal equivalent of having one hand tied behind your back.”
Frost’s lawyer was faced with a Hobson’s choice of arguing either the state failed to prove Frost participated in the crime spree, or if he did participate, it was under duress, based on threats against his family. The judge would not let him argue both theories.
Frost was sentenced to 47 years in prison.
The majority in the original three-judge panel agreed with the Washington Supreme Court holding that the trial judge was wrong but deserved wide latitude in managing his case.
The three-judge panel found the limits on Frost’s lawyer was error but harmless.
Frost was accused of driving the getaway car in a series of five assaults and robberies over 11 days. Two accomplices were accused of using guns while robbing a home, a restaurant, a video store, a 7/Eleven and a market. The trio were arrested and authorities found firearms, ski masks, bank bags, a cash register and safes in Frost’s home, all related to the robberies.
Frost testified in his own defense that he felt forced to participate because if he refused, on of his cohorts would harm his mother and brother, according to opinion author Judge Richdard Tallman.
Tallman noted the U.S. Supreme Court has never addressed a claim suhc as Frost’s on limiting the scope of closing argument.
Frost argued the muzzle on his defense lawyer amounted to a structural error in the handling of his care and entitled him to automatic reversal.
Tallman called evidence against him “overwhelming” and pointed to three taped confessions.
Now an 11-judge panel of the 9th Circuit will reconsider the limits imposed on his lawyer’s closing argument.
Case: Frost v. Van Boening, No. 11-35114