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April 3, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Now before the Court is petitioner John Thomas's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Upon receipt of Mr. Thomas's petition, the Court issued an order to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a timely traverse.


In 1996, John Thomas was convicted by a jury in California Superior Court of two counts of continuous sexual abuse of a child (Cal. Penal Code § 288.5), six counts of lewd or lascivious acts with a child under the age of fourteen (Cal. Penal Code § 288), and two counts of sodomy (Cal. Penal Code § 286). He was sentenced to 30 years in prison.

The conduct for which Mr. Thomas was convicted involved three minor victims, all of whom testified at trial. One of the minors, Marcus M., testified that, among other things, petitioner removed Marcus's pants and placed him on a 4-foot long seesaw-like board so that Marcus's anus was positioned directly over a hole in the board. Marcus testified that on two separate occasions, petitioner lay down on his back, penetrated Marcus through the board, and used a string to move the board up and down. This alleged conduct was the basis for counts 7 through 10 of the information, which charged petitioner with two counts of sodomy and two counts of lewd and lascivious acts committed by force.

As part of petitioner's defense to these charges, defense counsel argued to the jury that it was physically impossible for petitioner to have committed the acts described by Marcus. during cross-examination of Marcus, defense counsel challenged Marcus to draw a diagram of the board, and then counsel himself lay down beneath a table as instructed by the witness to simulate the position that petitioner allegedly assumed. See RT 482-86, 505-09. During closing arguments, counsel called Marcus's testimony "ludicrous" and "impossible physically," and suggested that the government should not prevail if its only evidence was Marcus's testimony regarding the acts that petitioner allegedly committed with the board. See RT 853-54. In addition, defense counsel argued that Marcus's testimony at trial was inconsistent with his statements to police and his testimony during the preliminary examination. See RT 857-60. Counsel also pointed out that Marcus did not level any allegations against petitioner until Marcus became a burglary suspect in two separate incidents, one of which was a burglary of the petitioner. Petitioner's theory of the case was that Marcus fabricated the allegations to escape blame for the burglary, and then persuaded two of his friends to fabricate similar allegations to bolster his claims. See Tr. 861-67, 876.

The prosecutor responded to petitioner's impossibility argument by referring the jury to the diagram that Marcus drew on the stand and the simulation that defense counsel conducted in court. She further suggested that Marcus's testimony was credible because victims like Marcus "don't forget, and . . . don't forget the way it hurts, and . . . don't forget the way it happened." RT 905. In addition, she characterized the suggestion that Marcus elicited false allegations from the government's other victim-witnesses as "completely unreasonable" "conspiracy theory." RT 900-01, 904.

At the conclusion of the nine-day trial, the jury returned verdicts of guilty on all counts.

After the verdict was entered and before petitioner was sentenced, petitioner moved for a new trial on the grounds of juror misconduct. Specifically, petitioner maintained that he was entitled to a new trial because the jurors had attempted to reconstruct the alleged incidents involving the seesaw board using parts of an easel they found in the jury room. At an evidentiary hearing on November 22, 1996, two jurors testified that some of the jurors had taken apart an easel and tried to demonstrate the acts of sodomy described by Marcus in an effort to ascertain whether they were physically possible. The jury foreperson testified that this reenactment satisfied at least one juror "that the acts as described by Marcus could have occurred." RT 6 (Nov. 22, 1996). She further testified that the jurors had voted on all of the counts that did not involve the seesaw board prior to conducting this experiment. RT 5 (Nov. 22, 1996). The second juror corroborated the foreperson's description of events.

Following the evidentiary hearing, the trial court granted petitioner's motion for a new trial with respect to counts seven through ten only. The court denied petitioner's motion for disclosure of juror information and sentenced petitioner to a term of forty-six years on counts one through six.

Petitioner appealed to the California Courts of Appeal. The Court of Appeal amended the judgment to reflect one conviction, rather than two, for continuous sexual abuse of a child. Although the case was remanded with instructions to reconsider petitioner's motion for juror information, the Court of Appeal ruled that the trial court did not abuse its discretion in failing to grant a new trial on counts one through six.

On remand, the trial court granted petitioner's motion for disclosure of juror information. Following a second evidentiary hearing on petitioner's motion for a new trial, the court denied the motion and sentenced petitioner to thirty years in prison. Petitioner again appealed to the Courts of Appeal. The Court of Appeal affirmed the trial court, finding that "[t]he record . . . supports the trial court's determination that the jury's demonstration affected only . . . counts 7 through 10." Pet's Ex. D, at 7. The California Supreme Court denied petitioner's review petition on April 18, 2001.

On April 16, 2002, petitioner filed this habeas petition on the grounds that the jury's experiment violated his constitutional right to due process. Petitioner maintains that the decision of the California Courts of Appeal affirming the trial court's denial of his new trial motion as to counts one ...

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