ARTICLE III HANDLING OF CRIMINAL CASES PURSUANT TO THE PROVISIONS OF THE SPEEDY TRIAL ACT AND ITS IMPLEMENTING

RULES Section 3. Duties Where Accused is Detained. If the Public Attorney knows that a person charged of a crime is detained, either because he/she is charged of a bailable crime but has no means to post bail, or is charged of a nonbailable crime, or is serving a term of imprisonment in any penal institution, the Public Attorney shall: a. File a Motion manifesting that the detainee/prisoner demands arraignment/trial and, for this purpose, that the custodian of the detainee/prisoner be ordered to bring the detainee/prisoner to the court, from time to time as ordered; b. Upon receipt of notice from the custodian that he/she has in his/her custody a detainee/prisoner who demands trial, the public attorney shall file a Motion that said detainee/prisoner be brought to the court for arraignment/trial. Section 4. Duties on Arraignment. The Public Attorney shall: A. Ascertain the schedule for the arraignment of the accused. Should there be none, he/she shall immediately file a Motion to Set Case for Arraignment of the accused: 2 Section 7, Rule 112, Rules of Court.When accused lawfully arrested without warrant. x xx. After the filing of the complaint or information in court without a preliminary investigation, theaccused may within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. 3 Section 1, Rule 117, Rules of Court. Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or information. PAO Code Book 34 of 375 1. Within thirty (30) days from the time the court acquired jurisdiction over the person of the accused; 2. Within ten (10) days from the date of the raffle4 or from receipt of the information when the accused is a detention prisoner. B. Immediately after arraignment, move either in open court or in writing that pre-trial be scheduled: 1. Within thirty (30) days from the time the court acquires jurisdiction over the person of the accused,5 who is out on bail; or 2. Within ten (10) days after arraignment6 when the accused is a detention prisoner. Section 5. Duties on Pre-trial. During Pre-trial, the Public Attorney shall: A. Ensure that the agreements or admissions made or entered into during the preliminary and/or pre-trial conference are faithfully and accurately reflected in the written form before signing the transcription, to the end that the accused shall be bound only by the admission/s made by him/her, and by the agreement/s that he/she actually entered into.7 B. To expedite the proceedings and if favorable to the accused, the Public Attorney may prepare judicial affidavits, subject to additional direct examination, in case of clear necessity and in the interest of speedy disposition of the case. C. Determine if the Pre-trial Order is an accurate reflection of the actions taken, the facts stipulated and the pieces of evidence marked. Should there be errors or inaccuracies, move for

the same to be rectified, prior to the agreed/scheduled initial presentation of evidence.8 D. Thereafter, move for the setting of the case for trial to commence, with at least fifteen (15) days to prepare for trial, but to make sure that the initial presentation of evidence be set within thirty (30) days from receipt of the Pre-trial order.9 4 Section 1(e), Rule 116, Rules of Court.When the accused is under preventive detention x xx. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days from arraignment. 5 Section 1, Rule 118, Rules of Court.Pre-trial; mandatory in criminal cases. In all criminal cases x xx, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for x xx. 6 Rule 116, Section 1(e). Ibid. 7 R.A. 8493, Section 3. Pre-trial Agreement. All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used in evidence against the accused. x xx. 8 Section 5, RA 8493.Pre-Trial Order After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice. 9 Section 6, S.C. Circular. No. 38-98. Pre-Trial Order. x xx. Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial which shall commence within thirty (30) days from receipt of the pre-trial order. appearing at or being returned for trial. (c) Any period of delay resulting from the fact that the accused is mentally incompetent or physically unable to stand trial. PAO Code Book 35 of 375 E. In the event that the pre-trial has already been scheduled and the complainant fails to appear despite due notice, move for the termination of the pre-trial and the setting of the case for trial. Section 6. Time Limit for Trial. When the case is set for trial by the Court, the Public Attorney shall take note and see to it that the case is set for continuous trial on a weekly or other shortterm trial calendar at the earliest possible time, EXCEPT for cases falling under the rules on summary procedure. The entire trial period shall not exceed one hundred eighty (180) days from the first day of trial EXCEPT when the trial court is authorized in writing by the Chief Justice or by the Court Administrator. Section 7. When the Accused Enters a Plea of Not Guilty. If the accused enters a plea of not guilty, the Public Attorney has at least fifteen (15) days to prepare for trial, which shall commence within thirty (30) days from receipt of the pre-trial order. Section 8. Exclusions. The Public Attorney shall take note of the period set forth in R. A. 8493 for the Speedy Trial and/or Resolution of cases, and shall see to it that only the allowable periods of delay as provided in Section 10 thereof be excluded from computing the time within

which trial must commence.10 10 RA 8493, Section 10. Exclusions. The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) delay resulting from an examination of the accused, and hearing on his/her mental competency, or physical incapacity; (2) delay resulting from trials with respect to charges against the accused; (3) delay resulting from interlocutory appeals; (4) delay resulting from hearings on pre-trial motions: Provided, that the delay does notexceed thirty (30) days; (5) delay resulting from orders of inhibition, or proceedings relating to change of venue ofcases or transfer from other courts; (6) delay resulting from a finding of the existence of a valid prejudicial question; and (7) delay reasonably attributable to any period, not to exceed thirty (30) days, duringwhich any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of the accused or an essential witness. For purposes of this subparagraph, an accused or an essential witness shall be considered absent when his/her whereabouts are unknown and, in addition, he/she is attempting to avoid apprehension or prosecution or his/her whereabouts cannot be determined by due diligence. An accused or an essential witness shall be considered unavailable whenever his/her whereabouts are known but his/her presence for trial cannot be obtained by due diligence or he/she resists (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and no motion for severance has been granted. (f) Any period of delay resulting from a continuance granted by any justice or judge motu proprio or on motion of the accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a PAO Code Book 36 of 375 Section 9. Time Limit Following an Order for New Trial. If there is an order for the accused to be tried again, the Public Attorney shall see to it that the trial shall commence within thirty

(30) days from notice of the order; except when witnesses are unavailable, or other factors make trial within thirty (30) days impractical; in which case, the period may be extended, but such extension shall not exceed one hundred eighty (180) days from notice of the order for new trial.11 Section 10. Remedy Where Accused is Not Brought to Trial Within the Time Limit. If an accused is not brought to trial within the time limit required by Section 712 of R.A. 8493 as extended by Section 913 thereof, the Public Attorney shall move to dismiss the charge/information on the ground of the denial of his/her right to speedy trial. The Public Attorney shall prove the violation of the time limits set by the Act, and rebut that the delay is attributable to any allowed exclusion from the period set by the law. The Motion to Dismiss on grounds of the accused not having been brought to trial within the time limit, shall be filed by the Public Attorney prior to trial or entry of a plea of guilty, otherwise, the said failure to so move shall constitute a waiver of the right to dismissal under Section 13, R.A. 8493.14 continuance granted by the court in accordance with this subparagraph shall be includable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public in a speedy trial. Toward this end, the Public Attorney shall insist on the strict adherence to the period set forth in the law and shall be ready to move for the dismissal of the case, where there is delay or violation of the aforestated periods. 11 Section 11, S.C. Circular No. 38-98. Time Limit Following an Order for New Trial. If the accused is to be tried again pursuant to an order of a court for a new trial, the trial shall commence within thirty (30) days from notice of that order, except that the court retrying the case may extend such period but not to exceed one hundred eighty (180) days from notice of said order for a new trial if unavailability of witnesses or other factors make trial within thirty (30) days impractical. 12 Section 7, RA 8493.Time Limit Between Filing of Information and Arraignment, and Between Arraignment and Trial. The arraignment of an accused shall be held within thirty (30) days from the filing of theinformation, or from the date the accused has appeared before the justice, judge or court in which thecharge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accusedshall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30) days fromarraignment as fixed by the court. x xx 13 Section 9, RA 8493. Extended Time Limit. Notwithstanding the provisions of Section 7 of this Act for the first twelve-calendar-month period following its effectivity, the time limit with respect to the period from

arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelvemonth period, the time limit with respect to the period from arraignment to trial shall be eighty (80) days. 14 S.C. Circular No. 38-98. Remedy Where Accused is Not Brought to Trial Within the Time Limit. If the accused is not brought to trial within the time limit x xx, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 9 hereof. The dismissal shall be subject to the rules on double jeopardy. PAO Code Book 37 of 375 INQUEST People v. Ebias

they must at all times have probable cause.68 The common law claim had three elements: (1) the individual was prosecuted without probable cause by law enforcement officers,69 (2) the prosecution occurred with malice, or recklessness to the lack of probable cause, and (3) the prosecution ultimately terminated in favor of the accused.70 Although termination of the criminal proceeding did not have to be because of innocence,71 the plaintiff would typically have to rebut a defense of guilt, which the state could prove by a preponderance of the evidence.72 By virtue of the simplicity of malicious prosecution, it sweeps together all conduct officers engage inanything that should lead an officer to believe that they lack probable cause provides evidence of malice. On the other hand, malicious prosecutions breadth is also its weaknessan often fatal weakness. So long as police can credibly show that they had probable cause, any violation of a suspects rights are rendered nonactionable. The effect is not even a no harm no foul rule.

Justice William Brennans opinion in In re Winship expressed the centrality of the presumption of innocence to our criminal justice system, calling it a bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. 397 U.S. 358, 36163 (1970) (citations omitted).
The Court embraced notions of fundamental fairness in Brady as well, stating that [s]ociety wins not only when the guilty are convicted but when criminal trials are fair. 373 U.S. at 87. 99. Medina v. California, 505 U.S. 437, 446 (1992) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)); see also Schlup, 513 U.S. at 325 (noting that concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system); Herrera, 506 U.S. at 419 (OConnor, J., concurring) (I cannot disagree with the fundamental legal principle tha t executing the innocent is inconsistent with the Constitution.); Berger v. United States, 295 U.S. 78, 88

(1935) ([T]he twofold aim of [the law] is that guilt shall not escape or innocence suffer.).

when 2005:35 Federal Wrongful Conviction Law 69 168. See Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) (explaining that there is no Section 1983 claim for fabricating evidence where that evidence is merely kept in a drawer, or framed . . . and hung . . . on the wall). 169. See, e.g., Kelly v. Curtis, 21 F.3d 1544, 154748 (11th Cir. 1994) (demonstrating a situation in which the plaintiff had also been charged and properly incarcerated based on a second crime). 170. For example, if the unconstitutional conduct was false testimony in front of the grand jury, the grand jury indictment may break the causal chain when that testimony was not presented at trial; however, if the police officer uses that false testimony to then mislead a prosecutor, there is causation under Section 1983. See Jones v. Cannon, 174 F.3d 1271, 128687, 1289 (11th Cir. 1999); Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir. 1996); Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996). 171. 373 U.S. at 87; see also Mooney v. Holohan, 294 U.S. 103, 11012 (1935) (holding that the use of perjured testimony and suppression of exculpatory evidence amounted to a denial of due process). 172. Kyles v. Whitley extended Brady to information held by police investigators but unknown to prosecutors. Kyles v. Whitley, 514 U.S. 419, 43738 (1995); see also Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (en banc) (agreeing that police who deliberately withhold exculpatory evidence and prevent prosecutors from complying with Brady violate the Due Process Clause); Spurlock v. Satterfield, 167 F.3d 995, 1005 & n.17 (6th Cir. 1999); Fero v. Kirby, 39 F.3d 1462, 1462 (10th Cir. 1994); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992); Jones, 856 F.2d at 995; cf. Newsome, 256 F.3d at 752 (*Defendant+ does have a due process claim in the original sense of that phrasehe did not receive a fair trial if the prosecutors withheld material exculpatory details.). 173. According to an Innocence Project study, in thirty-four percent of all exonerations, police suppressed exculpatory evidence, and prosecutors did so in thirtyseven percent of all exonerations. Innocence Project, Police and Prosecutorial Misconduct [hereinafter Innocence Project Study], at http://www.innocenceproject.org/ police fabricate evidence, but that evidence was not admitted at trial, there was no trial,168 or the defendant was charged with a different crime.169 In those instances, superceding events make the causal connection too tenuous.170 To summarize, while harmless error has become a guilt-based inquiry permitting appellate courts to excuse error based on other evidence of guilt, in a civil case, a jury asks whether misconduct itself was a significant contributing causeafter an exoneration. This Article next examines each fair trial right in turn.
Manning v. Miller, 355 F.3d 102829, 1031 (7th Cir. 2004) (denying FBI agents absolute and qualified immunity motions as to a Section 1983 Brady claim); Newsome, 256 F.3d at 747, 753 (rejecting the defendants qualified immunity defense in a case involving wrongful conviction, imprisonment, and prosecutorial

withholding of evidence); Daniels v. United States, 254 F.3d 1180 (10th Cir. 2001); Gonzales v. McKune, 247 F.3d 1066, 1075 (10th Cir. 2001) (explaining that the prosecutions withholding of potentially exculpatory DNA evidence resulted in a Brady violation); Nuckols v. Gibson, 233 F.3d 1261, 1267 (10th Cir. 2000) (holding that a Brady violation occurred when the prosecution withheld evidence that would have enabled the defense to test the credibility of a witness on cross-examination); McMillian v. Johnson, 88 F.3d 1554, 1567, 1568 (11th Cir. 1996) (holding that a Brady violation occurred when investigators failed to turn over exculpatory evidence to the prosecutor); Smith v. Secy of N.M. Dept. of Corr., 50 F.3d 801, 835 (10th Cir. 1995) (holding that a Brady violation occurred when there was a reasonable probability the result of the proceeding would have been different had certain evidence been disclosed); United States v. Endicot t, 869 F.2d 452, 455 (9th Cir. 1989) (holding that a Brady violation occurred when government

agents had knowledge of false testimony evidence and when the disclosure of the false testimony had a reasonable likelihood of affecting the jurys verdict); Jones, 856 F.2d at 995 (holding that a Brady violation occurred when investigators concealed evidence from prosecutors in order to c promised favorable treatment contrary to the prosecutors representations to the jury that no such promise was made); Hilliard v. Williams, 516 F.2d 1344, 1350 (6th Cir. 1975) (holding that a Brady violation occurred when the prosecution offered false and misleading testimony during the defendants trial).
. United States v. Bagley, 473 U.S. 667, 682 (1985). . 514 U.S. at 43536. In Kyles, the Court explained that once a reviewing court applying Bagley has found constitutional error there is no need for further harmlesserror review because the standard for materiality is more stringent than the Brecht standard, requiring a substantial and injurious effect or influence in determining the
176 177

jurys verdict. Id.; see also Bagley, 473 U.S. at 67980. The

standard adopted was one of a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, 473 U.S. at 682.
. Federal courts sometimes describe the issue of prejudice to the defendant as a question of harmless error. See, e.g., United States v. Ramirez, 174 F.3d 584, 588 (5th Cir. 1999); United States v. Bruck, 152 F.3d 40, 47 (1st Cir. 1998); United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997); United States v. Sasser, 971 F.2d 470, 481 (10th Cir. 1992); United States v. Carr, 965 F.2d 408, 412 (7th Cir. 1992); United States v. Sanchez, 963 F.2d 152, 156 (8th Cir. 1992). 179. The Court stated in Kyles that [t]he question is not whether the defendant
178

would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. 514 U.S. at 434.
. Id. (citing Bagley, 473 U.S. at 678). Circumvent the Brady rule that investigators do not have to keep records of all investigative activities); Boone v. Paderick, 541 F.2d 447, 453 (4th Cir. 1976) (holding that a Brady violation occurred when there was a reasonable likelihood
180

often provide grossly inadequate representation, providing few funds and retaining incompetent lawyers.198 Individual lawyers may lack malpractice insurance and it may be difficult to collect compensation from them, but the municipalities responsible for their assignment to criminal cases may now, for the first time, be held liable.199 Harmless error again plays a central role in this turnabout. The Supreme Court held in Strickland v. Washington that a conviction may only be overturned if the performance of counsel was so ineffective that it affected the outcome at trial.200 The prejudice prong may be decided without even reaching the question of whether counsel was ineffective,201 and courts generally base their decisions on the totality of the evidence before the judge or jury, that is, whether there was strong evidence of

guilt.202 The Court also underscored the strong presumption of

76 WISCONSIN LAW REVIEW

. Id. at 696. The Court further stated that the entire criminal justice system should not have to suffer by being burdened with ineffective assistance of counsel claims. Id. 204. See Darrin Hurwitz & Sarah K. Eddy, Thirty-First Annual Review of Criminal Procedure, Right to Counsel, 90 GEO. L.J. 1579 & nn.146063, 159495 n.1513 (2002) (discussing generally the ineffective assistance of counsel standard and collecting cases setting out the deficient performance resulting in a fundamentally unfair outcome standard applicable to an ineffective assistance of counsel claim). 205. See Kamin, supra note 2, at 5152 (Ineffective assistance claims, therefore, appear to incorporate harmless error analysis into the substantive standard.); McCord, supra note 137, at 115962. 206. 514 U.S. at 436 n.9 (quoting Hill v. Lockhart, 28 F.3d 832, 839 (8th Cir. 1994)). The Court added, [i]n sum, once there has been Bagley error as claimed in this case, it cannot subsequently be found harmless. Id. at 436. The Court had earlier disclaimed in dicta that the prejudice prong is a harmless error rule by stating that [h]armless-error analysis is triggered only after the reviewing court discovers that an error has been committed. And under Strickland . . . an error of constitutional magnitude occurs in the Sixth Amendment context only if the defendant demonstrates (1) deficient performance and (2) prejudice. Lockhart v. Fretwell, 506 U.S. 364 , 369 n.2 (1993); see also William S. Geimer, A Decade of Stricklands Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 W M. & MARY BILL RTS. J. 91, 131 (1995) (In spite of the Courts recent pronouncement [in Lockhart v. Fretwell] that Stricklands application does not involve harmless error analysis, the contrary is obviously true.) (footnotes omitted). 207. Strickland, 466 U.S. at 693. 208. See infra note 224.
203

reliability of jury verdicts.203 Courts applying the doctrine on appeal commonly conclude that, due to sufficient evidence of guilt presented at trial, any ineffective assistance did not affect the outcome.204 The Strickland test, then, is a harmless error rule; as commentators have noted, the Strickland rule thus creates a [c]amouflaged [h]armless [e]rror [d]octrine.205 The Supreme Court acknowledged as much in Kyles, quoting an Eighth Circuit case for the proposition that it is unnecessary to add a separate layer of harmless error analysis to an evaluation of whether a petitioner in a habeas case has presented a constitutionally significant claim for ineffective assistance of counsel.206 The Strickland Court similarly explained that it was adopting the Brady materiality standard, which it called a harmless error rule.207 As with other internalized harmless error rules, the rule enhances the harmless error standard because although the reasonable probability standard does not depart from civil causation, in application, courts isolate evidence of guilt and strongly presume the verdict was reliable.208

When, as in this instance, a reviewing court is unable to determine from the record whether a jury convicted on admissible evidence or rejected 39 that evidence and convicted on inadmissible evidence improperly received, it must find the error to have been prejudicial.

The prejudicial effect of bad act evidence is that it produces an over-strong tendency to believe the defendant is guilty of the charge merely because he is a likely

person to do such acts. (People v. Holt (1984) 37 Cal.3d 436, 450-451.) In one of the leading cases, People v. Thompson (1980) 27 Cal.3d 303, 332-333, the court does a superb analysis of error in admitting other crimes evidence. Courts have long held evidence of past misconduct can only be admitted with great caution because of the 48 enormous potential for undue prejudice to the defendant. As stated in People v. Ewoldt (1994) 7 Cal.4th 380, 404, [e]vidence of uncharged offenses is so prejudicial that its admission requires extremely careful analysis. Such evidence is to be received with extreme caution, and all doubts about its connection to the crime charged must be resolved in the accused's favor. (People v. Alcala (1984) 36 Cal.3d 604, 631.)

In light of the overwhelming damage thereby inflicted by the prosecution, we must surely acknowledge at least a reasonable possibility that the defendant took the stand in part because a confession which he erroneously believed admissible had completely demolished his prospects for a favorable verdict. In recognizing such a possibility here, we do no more than heed the admonition of Justice Cardozo: The springs of conduct are subtle and varied. One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others. (De Cicco v. Schweizer (1917) 221 N.Y. 431, 438 [117 N.E. 807].)
Other errors requiring reversal per se include denial of counsel of choice to a defendant who is financially able to retain counsel (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150-151), the failure of counsel to subject the prosecutions case to meaningful adversarial testing (United States v. Cronic (1984) 466 U.S. 648, 668), the giving of a constitutionally deficient reasonable-doubt instruction (Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282), denying the defendant access to his attorney during an overnight recess (Perry v. Leeke (1989) 488 U.S. 272, 278-279), instructing the jury that a defendant can be found guilty on a preponderance of the evidence (Jackson v. Virginia (1979) 443 U.S. 307, 320, fn. 14; People v. Phillips (1985) 41 Cal.3d 29, 84), issuing peremptory challenges against jurors on the basis of bias against a cognizable group (People v. Wheeler (1978) 22 Cal.3d 258, 283; People v. Silva (2001) 25 Cal.4th 345, 386; Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1096; United States v. McFerron (6th Cir. 1998) 163 F.3d 952, 955-956; Tankleff v.

Senkowski (2nd Cir. 1998) 135 F.3d 235, 248), the failure to furnish a retried defendant with a free transcript of his prior trial (People v. Hosner (1975) 15 Cal.3d 60, 70), denying the defendant the right to present his defense (In re Eichorn (1998) 69 Cal.App.4th 382, 390-391), preventing defense counsel from arguing the defense theory of the case and instructing the jury that no evidence supported that theory (United States v. Miguel (9th Cir. 2003) 338 F.3d 995, 1000-1004), allowing the jury, during deliberations, to listen to audiotapes never played in open court (United States v. Noushfar (9th Cir. 1996) 78 F.3d 1442, 1444-1446), having the court clerk, rather than the court, rule on a request for a re-reading of testimony (Riley v. Deeds (9th Cir. 1995) 56 F.3d 1117, 1119-1120), having the judge absent during part of the trial (United States v. Mortimer (3d Cir. 1998) 161 F.3d 240 [closing argument]).