
USCA1 Opinion

	




                              _________________________          No. 96-1976                                  DANIEL J. CURTIS,                               Petitioner, Appellant,                                         v.                              RONALD T. DUVAL, ET AL.,                               Respondents, Appellees.                              _________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                           Campbell, Senior Circuit Judge,                            and Lagueux,* District Judge.                              _________________________               Wendy Sibbison for appellant.               Gregory I. Massing, Assistant Attorney General, Commonwealth          of Massachusetts, with whom Scott                                             Harshbarger, Attorney General,          was on brief, for appellees.                              _________________________                                   August 13, 1997                              _________________________          _____________          *Of the District of Rhode Island, sitting by designation.                    SELYA, Circuit                                    Judge. Petitioner-appellant Daniel J.          Curtis, a state prisoner serving a life sentence for second-degree          murder, challenges the constitutionality of his conviction. He          asseverates that three occurrences _ the absence of counsel when          the trial judge delivered a supplementary jury instruction, the          fact that the supplementary instruction impermissibly shifted the          burden of proof, and the trial court's refusal to immunize a          potential defense witness _ abridged his constitutional rights.          The district court declined to issue a writ of habeas corpus. We          affirm.          I. PROCEDURAL HISTORY                    A Suffolk County (Massachusetts) jury convicted the          petitioner of second-degree murder on December 30, 1980, and the          trial judge sentenced him to life imprisonment. The Massachusetts          Supreme Judicial Court (SJC) turned down the petitioner's initial          appeal, in which he argued that the trial court had transgressed          his rights to due process and compulsory process under the Sixth          and Fourteenth Amendments when it refused to immunize a prospective          defense witness. See                                Commonwealth v.                                               Curtis, 448 N.E.2d 345 (Mass.          1983) (Curtis I). Six years later, the petitioner filed a motion          for new trial and raised for the first time two additional issues,          both of which concerned the trial court's rendition of a          supplementary jury instruction. The state superior court denied          the motion and the SJC affirmed.  See Commonwealth v. Curtis, 632          N.E.2d 821 (Mass. 1994) (Curtis II).                    On April 12, 1995, the petitioner docketed an application                                          2          for habeas relief in the United States District Court for the          District of Massachusetts, naming as respondents various state          officials (who, for ease in reference, we refer to as "the          Commonwealth"). In due course, the district court wrote a          thoughtful opinion in which it refused to issue the writ.     See          Curtis v. Duval, Civ. No. 95-10758-DPW (D. Mass. July 11, 1996)          (unpublished). This appeal followed.          II. FACTUAL BACKGROUND                    We sketch the evidence relevant to this appeal, referring          readers who hunger for greater detail to the SJC's fuller accounts.          See Curtis II, 632 N.E.2d at 824-26; Curtis I, 448 N.E.2d at 346-          48. We propose to describe the pertinent procedural aspects of the          petitioner's trial when we address his specific claims.                    On the evening of July 14, 1980, Michael Robinson was          severely beaten in a confrontation between a group of East Boston          youths and a number of sailors. He died eight days later from head          injuries.                    The origin of the fracas is obscure. Its genesis          apparently lies in an encounter between Lenny Curtis, the          petitioner's brother, and four black sailors who were lounging          outside the perimeter fence of an East Boston shipyard. Witnesses          gave conflicting testimony about what transpired. Lenny Curtis          testified that one of the sailors struck him when he rebuffed a          request for a cigarette. A sailor testified that Lenny Curtis          strolled by them unmolested but gave them "hard looks."                    In any event, when Lenny Curtis spotted his friend, Eddie                                          3          Colon, riding a bicycle, he told Colon to scat and "get my two          brothers." Word of the brewing storm spread. Soon the four black          sailors were joined by several white sailors, including Robinson,          while between twelve and twenty East Boston youths assembled in          apparent opposition. Some of the youths reportedly hurled racial          epithets.                    When the petitioner arrived at the scene by car, someone          told him that the sailors had assaulted his brother. A full-scale          brawl erupted soon thereafter. Witnesses disagreed over the          petitioner's role. According to some accounts, the sailors fled          from the youths. On this version, Robinson either tripped or was          pushed to the ground. Seaman Webb testified that he saw the          petitioner hit a supine Robinson over the head with a baseball bat          three times. Other witnesses testified that there were multiple          assailants.                    Lenny Curtis told a very different story. He said that          when his brother approached Robinson, Robinson swung a bottle at          him. The petitioner ducked, punched Robinson, and then backed away          as Robinson fell to the ground. Lenny Curtis stated that he saw          three or four other persons attack Robinson with bats and sticks as          Robinson lay prostrate (whereupon the Curtis brothers skedaddled).          III. STANDARD OF REVIEW                    The Antiterrorism and Effective Death Penalty Act          (AEDPA), 28 U.S.C.A. S 2254(d) (Supp. 1997), became law on April          24, 1996 _ after the petitioner filed his habeas petition but          before the district court acted upon it. Although the AEDPA alters                                          4          the standard of review governing the issuance of writs of habeas          corpus, the Supreme Court has determined that the AEDPA does not          apply to habeas petitions which were pending when the AEDPA became          law. See                    Lindh v.                             Murphy, No. 96-6298, 1997 WL 338568, at *8 (U.S.          June 23, 1997). The petitioner is therefore entitled to de novo          review of his claim that the state court abridged his          constitutional rights. See                                      Martin v.                                               Bissonette, ___ F.3d ___, ___          (1st Cir. 1997) [No. 96-1856, slip op. at 7-8];                                                          see                                                              also                                                                   Scarpa v.          Dubois, 38 F.3d 1, 9 (1st Cir. 1994) (explaining that federal          courts, although respecting state courts' findings of historical          fact, traditionally afford de novo review in regard to ultimate          questions presented by state prisoners' habeas petitions),  cert.          denied, 513 U.S. 1129 (1995).          IV. THE MERITS                    We turn now to the three claims that are before us. We          discuss them seriatim.                             A.  Deprivation of Counsel.                    The basic facts pertinent to the petitioner's argument          that he was deprived of his Sixth Amendment right to the effective          assistance of counsel are as follows. The petitioner's trial wound          down on December 29, 1980. On that date, final arguments were made          and the trial court charged the jury. Deliberations began the next          morning. At 2:00 p.m. on December 30, the trial judge conducted a          chambers conference. He stated at the outset that he had tried          unsuccessfully to locate the petitioner's attorney for at least          twenty minutes.                                          5                    At 3:14 p.m., notwithstanding that the missing lawyer          still had not surfaced, the judge ordered the jury returned to the          courtroom and, acting                                sua                                    sponte, gave a supplementary instruction          anent the lesser included offense of manslaughter.                                                            The jury found          the petitioner guilty of second-degree murder at 3:55 p.m.                    The petitioner's paramount claim is that the judge's          actions deprived him of counsel at a critical stage of the          proceedings. He cites  United States v. Cronic, 466 U.S. 648, 659          (1984), as authority for the concept that, when such a deprivation          occurs, it constitutes a structural error which makes the trial          presumptively unfair and requires automatic reversal on habeas          review. On this basis, he maintains that the state court's action          unleashed a presumption of prejudice per se, which entitles him to          habeas relief.                    Cronic and its progeny do indeed stand for the          proposition that the actual or constructive denial of counsel at a          critical stage of a criminal trial constitutes prejudice per se and          thus invalidates a defendant's conviction.                                                     See                                                         Perry v.                                                                  Leeke, 488                                             The supplementary instruction stated in pertinent part:                    Now in case you are wondering about the                    manslaughter, remember that I told you that                    the only set of facts, if you believe them,                    that would warrant a manslaughter verdict                    would be the instance that I recalled to your                    mind if one of the witnesses _ I think it was                    Curtis' brother testified that the sailor was                    the aggressor, that is, that he swung a bottle                    at Mr. Curtis first, and that, then, if Curtis                    used what you feel was unreasonable force in                    defending himself that it would warrant a                    verdict of manslaughter against Curtis.                                          6          U.S. 272, 278-79 (1989); Penson v. Ohio, 488 U.S. 75, 88 (1988).          It is apodictic that the right to counsel is not honored for its          own sake, but rather because it ensures the accused a fair trial.          The Cronic Court reaffirmed this aphorism, but recognized that,          because of the presumption that counsel's assistance is essential,          the denial of counsel at a critical stage renders an otherwise          acceptable trial unfair.  See Cronic, 466 U.S. at 659.                    The petitioner is also correct when he asserts that          recalling the jury for supplementary instructions after          deliberations are underway is a critical stage of a criminal trial.          See              Rogers v.                        United States                                    , 422 U.S. 35, 38-39 (1975);                                                                 Siverson v.          O'Leary, 764 F.2d 1208, 1214 (7th Cir. 1985). It is evident to us          that giving a sua sponte jury instruction without consulting, and          in the absence of, the defendant's attorney, as occurred here,          denies the defendant the assistance of counsel at that critical          stage.  See United States v. Parent, 954 F.2d 23, 25-26 (1st Cir.          1992). And although this deprivation was short-lived, it occurred          during a vital point in the trial and was, within its terms, total.          Therefore, were we to apply Cronic, Penson, and Parent, we would          hold that the error required reversal.                    In a habeas proceeding, however, special protocols          prevail. Under one such protocol, "new constitutional rules of          criminal procedure will not be applicable to those cases which have          become final before the new rules are announced." Teague v.                                                                       Lane,          489 U.S. 288, 310 (1989) (plurality).                    Although this protocol would seem to have a bearing on                                          7          the disposition of Curtis' habeas petition, there is a procedural          glitch. The Commonwealth has not explicitly relied on Teague, and          the district court decided the issue on other grounds. Moreover,          the              Teague paradigm is not jurisdictional in the sense that a court          is obliged to raise the point on its own initiative.  See Collins          v.             Youngblood, 497 U.S. 37, 41 (1990). Thus, by failing either to          cite Teague or to rely on its rationale in connection with the          petitioner's Sixth Amendment claim, the Commonwealth forfeited the          right to insist that we recognize this potential line of defense.          See id.                    Withal, an appellate court possesses the authority to          raise the Teague issue on its own initiative if it believes that          doing so will further the ends of justice. See                                                          Caspari v.                                                                     Bohlen,          510 U.S. 383, 389 (1994). We recognize that this power must be          used judiciously, and that many factors enter into the decisional          calculus. Here, the interests of comity and orderly procedure loom          large. Thus, we choose to invoke  Teague.                    To apply the paradigm of nonretroactivity required by          Teague, we must determine when the petitioner's conviction became          final and "whether a state court considering [the petitioner's]          claim at the time his conviction became final would have felt          compelled by existing precedent to conclude that the rule [he]          seeks was required by the Constitution."                                                   Saffle v.                                                             Parks, 494 U.S.          484, 488 (1990). If the answer to this inquiry is in the negative,          the petitioner may benefit from the new rule only if it falls          within one of two isthmian exceptions. The first exception is                                          8          operative only "if the rule places a class of private conduct          beyond the power of the State to proscribe," and the second only if          the rule is a "`watershed rule[] of criminal procedure' implicating          the fundamental fairness and accuracy of the criminal proceeding."          Lambrix v. Singletary, 117 S. Ct. 1517, 1531 (1997) (citations          omitted).                    The petitioner's conviction became final in 1983.          Accordingly, the threshold question is whether a state court, at          that time, would have felt compelled to adopt the                                                            Cronic principle          that a deprivation of counsel during a critical stage amounts to          prejudice per se and thus mandates automatic reversal. We think          not.                    We acknowledge that by 1983 it long had been established          that the Sixth Amendment right to assistance of counsel attaches at          all critical stages of the prosecution.    See, e.g., Simmons v.          United States                      , 390 U.S. 377, 382-83 (1968). Although this general          precept was quite clear, it was by no means settled in 1983 what          remedy a court should employ to redeem a violation of the right to          counsel. On the one hand, the Court had stated that "there are          some constitutional rights so basic to a fair trial that their          infraction can never be treated as harmless error,"   Chapman v.          California, 386 U.S. 18, 23 (1967), and had cited a deprivation-of-          counsel case,  Gideon v.  Wainwright, 372 U.S. 335 (1963), as          authority for that statement. On the other hand, hot on the heels          of Chapman, the Court remanded a case for harmless error analysis          after finding that the petitioner had been denied counsel at a                                          9          critical stage of the prosecution. See                                                  Gilbert v.                                                             California, 388          U.S. 263, 272 (1967) (involving the denial of the right to counsel          at a post-indictment pretrial lineup).                    We harmonize this dissonance by concluding that the          Chapman Court was referring to a wholesale denial of counsel,          whereas the                      Gilbert Court was referring to a short-term, localized          denial of counsel. This interpretation receives a measure of          confirmation from subsequent opinions in which the Court conducted,          or ordered lower courts to conduct, harmless error analysis in          response to an isolated deprivation of counsel at a critical stage          of a criminal trial, yet refused to countenance such analysis when          the right was denied throughout the proceedings in their entirety.          Compare                  Moore v.                           Illinois, 434 U.S. 220, 232 (1977) (remanding for          harmless error analysis after denial of assistance of counsel at a          preliminary hearing)                               with                                    Holloway v.                                                Arkansas, 435 U.S. 475, 490-          91 (1978) (rejecting harmless error analysis in a case involving          joint representation of conflicting interests).                    Any residual doubt about whether a state court judge          would have felt propelled to presage   Cronic's prejudice per se          principle is purged by  United                                          States v.  Morrison, 449 U.S. 361          (1981). There the Court, after remarking "society's interest in          the administration of criminal justice," stated that "[c]ases          involving Sixth Amendment deprivations are subject to the general          rule that remedies should be tailored to the injury suffered from          the constitutional violation and should not unnecessarily infringe          on competing interests." Id. at 364. Bearing this preference for                                         10          proportionality in mind, the Court declared that, depending on the          nature of the transgression, "certain violations of the right to          counsel may be disregarded as harmless error."  Id. at 365.                    Given the weight and direction of these precedents, we do          not believe that a state court in 1983 would have felt that Sixth          Amendment jurisprudence compelled the adoption of the principle          established a year later by the Supreme Court's opinion in                                                                     Cronic.          Consequently, we conclude that Cronic announced a "new rule" as          that term is understood in the Teague context.                    Since the Cronic principle does not fall into either of          the Teague exceptions, the petitioner's position erodes. The          principle does not place any conduct beyond the power of the state          to regulate, and it does not implicate the fundamental fairness or          accuracy of a criminal proceeding. Thus, under       Teague, the          petitioner is not entitled to rely on the principle announced in          Cronic.                    We turn, therefore, to the petitioner's contention that          he was actually prejudiced due to the transitory absence of his          lawyer. Before launching into this examination, we are constrained          to note that for six years no one intimately involved in the          petitioner's trial apparently thought that counsel's absence during          the supplementary instruction had been injurious enough to mention          on direct review or more coeval collateral review. Although this          observation is by no means dispositive, it does provide useful          information as to the contemporaneous perception of prejudice as we          today inquire into possible harmfulness.                                         11                    On collateral review, the standard for harmless error          analysis, which derives from Kotteakos v. United States, 328 U.S.          750 (1946), affords relief only when the error "had substantial and          injurious effect or influence in determining the jury's verdict."          Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (quoting, without          attribution,                       Kotteakos, 328 U.S. at 776). Applying this criterion,          we find that the effect of this error was neither substantial nor          injurious, and that, therefore, the error was harmless.                    To determine whether the Sixth Amendment violation had a          substantial or injurious effect, we focus primarily on the fruit of          that violation: the supplementary instruction as given. The          petitioner argues that the instruction was harmful for three          related reasons: the trial court's supplementary charge was          unconstitutional; the flawed instruction improperly induced the          jury's verdict; and counsel's absence deprived the petitioner of          any opportunity to influence the wording of the instruction.          Finding none of these plaints persuasive, we hold the error to have          been benign.                    The petitioner's first complaint need not detain us. We          explain fully in Part IV(B),      infra, why the supplementary          instruction conformed with the applicable legal norms, and it would          be pleonastic to rehearse that discussion here. It suffices to say          at this juncture that the petitioner was not prejudiced on this          account.                    This conclusion also dooms the petitioner's second          contention. As long as the instruction passes muster from a legal                                         12          standpoint, the fact that it may have helped to persuade the jury          is unremarkable.  See United States v. Nichols, 820 F.2d 508, 512          (1st Cir. 1987). Moreover, we cannot accept the petitioner's          brazen assumption that because the jury returned its verdict a half          hour after hearing the supplementary instruction, the instruction          must have had some effect. The judge offered the instruction  sua          sponte. Thus, we cannot infer that the jury was even concerned          with the subject matter of the supplementary instruction. Because          we can only speculate about the correlation, if any, between the          giving of the supplementary instruction and the timing of the          verdict, it cannot fairly be said that the instruction had any          impact, let alone a substantial impact, or that it was injurious.                    This leaves us with the last argument. Citing   Parent,          the petitioner claims that he was undone by his attorney's absence          because, whether or not the supplementary instruction was correct,          he missed the opportunity to persuade the judge that some different          language might have been more appropriate.                                                     See                                                         Parent, 954 F.2d at          26 (finding denial of counsel to be reversible error on direct          appeal because "defense counsel was powerless to prime the pump of                                             This case is unlike Rogers v. United States, where the jury          returned a verdict five minutes after the court replied          affirmatively (without consulting counsel) to a question from the          jury about whether it would accept a particular verdict.  See 422          U.S. at 36-37. When a jury indicates that it thirsts for knowledge          on a particular point and the court subsequently slakes that          thirst, the inference can reasonably be drawn that the court's          input had a causal effect on a verdict returned within minutes of          the court's action. The situation is vastly different where, as          here, the jury never indicated an interest in the subject matter of          the sua sponte supplementary instruction.                                         13          persuasion"). To the extent that this argument is of          constitutional dimension, it strives to redeem the intangible          might-have-been; after all, a harm that cannot be quantified,          cannot be identified. Unfortunately for the petitioner, this          Parent harm is the same harm addressed by the prejudice per se          principle, and as such its application is also barred by Teague.                    In this case, all roads lead to Rome. Because of the          nonretroactivity paradigm, the brief deprivation of counsel which          occurred at trial some seventeen years ago, while lamentable, does          not constitute a lever that can be used on collateral review to          overturn the petitioner's conviction.                         B.  Supplementary Jury Instruction.                    Due process requires that the government prove every          element of a criminal offense beyond a reasonable doubt.      See          Francis v.  Franklin, 471 U.S. 307, 309 (1985);     Sandstrom v.          Montana, 442 U.S. 510, 522-24 (1979). In  Anderson v. Butler, 23          F.3d 593 (1st Cir. 1994), we described a three-pronged framework to          be used in analyzing burden-shifting claims:                    [A] reviewing court must first determine                    whether a reasonable juror would have                    interpreted the challenged portion of the                    instruction as creating a mandatory                    presumption. If so, the court must then                    consider whether other parts of the charge                    clarified the ill-advised language with the                    result that a reasonable factfinder would not                    have understood the instruction to create an                    unconstitutional presumption. Finally, if the                    court determines that the charge as a whole                    left the jurors with an impermissible                    impression, the court must proceed to evaluate                    the harmlessness vel non of the error.          Id. at 595 (citing                             Hill v.                                     Maloney, 927 F.2d 646 (1st Cir. 1990)).                                         14                    We will assume here that Lenny Curtis' testimony that          Robinson initiated the fracas by swinging a bottle at the          petitioner provided a basis for a claim of self-defense. Under          Massachusetts law,                    once the issue of self-defense has been fairly                    raised, the jury should [be] instructed on the                    legal consequences of using manifestly                    disproportionate violence in the supposed                    exercise of the right of self-defense. If the                    jury [conclude] that [the defendant] had the                    right to use force to defend himself but that                    the force used was excessive . . . they would                    [be] warranted in finding [the defendant]                    guilty only of manslaughter.          Commonwealth v.   Johnson, 589 N.E.2d 311, 313 (Mass. 1992)          (citations and internal quotation marks omitted) (alterations in          original).                    The petitioner posits that the court's supplemental jury          instruction, quoted supra note 1, unconstitutionally shifted the          burden to him to prove self-defense by telling the jurors in effect          that they must believe Lenny Curtis' testimony in order to return          a manslaughter verdict. We disagree with this assessment.                    We start with the first prong of the three-pronged test.          Although this supplementary instruction is not artfully phrased, we          believe that no reasonable juror would interpret it as creating a          mandatory presumption. To the contrary, we agree with the district          court that a reasonable juror probably would have understood this          instruction as clarifying the circumstances which would, if proved          beyond a reasonable doubt by the prosecution, warrant a          manslaughter conviction.                    The second prong of the test also favors the                                         15          Commonwealth. On whole-record review, it seems highly likely that          any prospect of confusion vis-a-vis the supplementary instruction          vanishes when the instruction is considered in conjunction with the          main charge. During the main charge the superior court judge          explicated Massachusetts law clearly, accurately, and succinctly,          telling the jury, inter alia, that "the defendant does not have to          convince you that he acted in self-defense. The Commonwealth has          to convince you that he did not, or that he used excessive force."          In addition, the judge cautioned the jury that:                    [I]f I refer to any of the evidence, it will                    be by way of example only in order to make the                    law a little easier for you to understand and                    to apply, and I in no way intend or infer that                    you are to give any more weight, place any                    more importance, and more credibility on a                    particular piece of evidence that I may                    mention in the course of the charge than on                    all the other evidence in the case.          In light of these instructions, we believe that a reasonable juror          would have understood that, through the supplementary instruction,          the trial court sought merely to facilitate the jury's          understanding of the applicable law.                    The petitioner also objects to another portion of the          supplementary charge: a portion which linked a manslaughter          verdict for him to one for his codefendant, Giglio (another East          Boston youth convicted of second-degree murder). In particular, he          complains about the statement: "If there is any manslaughter                                             Since we do not believe that there is any appreciable risk          that the supplementary charge confused the jurors or left them with          an incorrect impression, the third prong of the                                                          Anderson test need          not concern us.                                         16          verdict in the Giglio case there has to be two of them."                    The vice in this statement, the petitioner says, is that          it led the jury to believe that, in order to be found guilty of the          lesser included offense, Curtis had the burden to prove that Giglio          too was guilty only of manslaughter.                    The petitioner's contention tortures the trial court's          statement and distorts its meaning. This portion of the          supplementary charge states that in order to find Giglio guilty of          manslaughter, the jury must first find Curtis guilty of          manslaughter. See                             Curtis II                                     , 632 N.E.2d at 829. It neither states          nor implies the converse: that in order to find Curtis guilty of          manslaughter, the jury must first find Giglio guilty of          manslaughter. The latter statement would have been incorrect, but          the former statement merely fleshed out a specific theory of          manslaughter in coming to the aid of another, touched upon in the          main charge.                                             This portion of the supplementary charge addressed the use of          excessive force in self-defense by the petitioner:                    I told you that if you find that happened, and                    that Giglio was helping him defend himself and                    used excessive force, but that it was the bat,                    not a bottle that caused the death, there                    could be a manslaughter verdict in the case of                    Giglio only if there is a manslaughter verdict                    in the case against Curtis, that is, the idea                    of the joint enterprise being that Giglio                    would have been aiding Curtis' self-defense                    effort, and then if Curtis used excessive                    force and was found guilty of manslaughter,                    then Giglio could also be found guilty of                    manslaughter. But if there is any                    manslaughter verdict in the Giglio case there                    has to be two of them.                                         17                    To say more would be supererogatory. Because we discern          no constitutional error in the trial court's supplementary jury          instruction, we reject the petitioner's second claim.                           C.  Refusal to Grant Immunity.                    At trial, the petitioner attempted to call as a defense          witness Joseph DeDominicis, one of the youths present during the          brawl. DeDominicis refused to testify on Fifth Amendment grounds.          The petitioner asked the court to immunize the witness, alleging          that DeDominicis would then testify that he saw a person named          Muzzone standing over the victim with a bat in his hand.    The          prosecution opposed the grant of immunity, asserting that it would          interfere with an ongoing grand jury investigation. The trial          court declined the request and the SJC affirmed.                                                           See                                                               Curtis I                                                                      , 448          N.E.2d at 348-50.                    The petitioner's claim that he was entitled to          DeDominicis' immunized testimony encompasses both the "effective          defense" theory _ which draws its essence from the Sixth Amendment          right to compulsory process _ and the "prosecutorial misconduct"          theory _ which draws its essence from the Fourteenth Amendment          right to due process. See                                     United States                                                 v.                                                     Angiulo, 897 F.2d 1169,          1190-93 (1st Cir. 1990) (limning both theories). On these facts,          neither approach takes wing.                    The effective defense theory originated in the Third                                             We note that this testimony, even if credited, would not have          been wholly exculpatory; some witnesses testified that they saw two          batsmen.                                         18          Circuit.  See Virgin Islands v. Smith, 615 F.2d 964, 974 (3d Cir.          1980). Under its mantra, a trial court has the power to grant          immunity based on a defendant's need to present exculpatory          evidence. See                         id. Thus, a trial court should grant immunity "when          it is found that a potential defense witness can offer testimony          which is clearly exculpatory and essential to the defense case and          when the government has no strong interest in withholding use          immunity."  Id.                    Notwithstanding the Third Circuit's pronouncement, the          effective defense theory has been roundly rejected by other courts,          most of which have agreed that the power to grant immunity properly          belongs to the Executive Branch.    See, e.g.,  United                                                                  States v.          Quintanilla, 2 F.3d 1469, 1483 (7th Cir. 1993); In                                                              re                                                                 Grand                                                                        Jury          Proceedings                        (Williams), 995 F.2d 1013, 1017 (11th Cir. 1993);          United States                       v.                           Tindle, 808 F.2d 319, 325 (4th Cir. 1986);                                                                      United          States v. Pennel, 737 F.2d 521, 526-29 (6th Cir. 1984);    United          States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980). We,          ourselves, in a case decided only recently, explicitly rejected the          effective defense theory.  See United                                                 States v. Mackey, ___ F.3d          ___, ___ (1st Cir. 1997) [No. 94-2264, slip op. at 8] (stating          that, "in general, courts have no power to compel immunity in the          face of a good faith refusal by the prosecutor [to grant it]").                                             To be sure, we added in Mackey that an occasional exception          perhaps "might exist upon very extreme facts."                                                         Mackey, ___ F.3d at          ___ [slip op. at 8]. The case at hand certainly is no stronger          than Mackey from the defense standpoint. Consequently, it comes          within the general rule, not within the hypothetical exception to          that rule.                                         19                    The prosecutorial misconduct theory fares no better here.          That theory is grounded in the notion that "the due process clause          [constrains] the prosecutor to a certain extent in her decision to          grant or not to grant immunity."  Angiulo, 897 F.2d at 1191. But          this constraint comes into play only when a prosecutor          "intentionally attempt[s] to distort the fact-finding process."          Id. A defendant can demonstrate such distortion in two ways: by          showing an attempt to harass or intimidate potential witnesses, or          by showing that the prosecutor deliberately withheld immunity for          the purpose of hiding exculpatory evidence from the jury. See                                                                         id.          at 1192.                    Neither of these circumstances obtain here. The          petitioner does not argue, and there is no evidence to suggest,          that the prosecutor sought to silence DeDominicis through          harassment or intimidation. And although the petitioner does argue          that the prosecution intended to withhold exculpatory evidence from          the jury, this argument comprises sheer speculation. On this          record, we cannot peer behind the prosecution's plausible assertion          of a legitimate interest in keeping the way clear for a possible          future prosecution of DeDominicis.   See Mackey, ___ F.3d at ___          [slip op. at 7-8];   Turkish, 623 F.2d at 776-77. Hence, the          petitioner's professed reliance on the prosecutorial misconduct          theory is unavailing.          V. CONCLUSION                    We need go no further. We have inspected the          petitioner's asseverational array and found it wanting. There is                                         20          no sound basis for granting a writ of habeas corpus.          Affirmed.                                         21
