Saturday, December 27, 2008

Death Penalty Imposed in 1983 Reversed: Sechrest v. Ignacio (Warden), 549 F.3d 789 (9th Cir. 2009)

Sechrest v. Ignacio (Warden) 549 F.3d 789 (9th Cir. 2009) The Ninth Circuit purportedly selects its three judge panels at random to hear appeals. Although this administrative practice ostensibly ensures a variety of judges on a panel regardless of the issues, the same judges repeatedly write decisions in death penalty cases reversing state trial courts on grounds of ineffective counsel. Judge Harry Peterson is the author of Sechrest v. Ignacio, a case tried in Nevada state court in 1983. The jury convicted Sechrest and sentenced him to death. Sechrest began a series of appeals in state court, all unsuccessful, but ultimately he obtained a post conviction hearing. The Nevada state court upheld the conviction and Sechrest began to file habeas corpus petitions in the U.S. District Court and the Ninth Circuit. Because he repeatedly defaulted in failing to exhaust state claims, the Ninth Circuit ultimately ordered the district court to permit a third amended petition alleging only exhausted claims. The district court held a hearing and denied all claims. Sechrest appealed to the Ninth Circuit alleging prosecutorial misstatement of the law, thereby violating due process, and contended his counsel was ineffective under the Sixth Amendment. Because the genesis of the petition for habeas corpus reviewing a state court conviction antedated AEDPA, the Ninth Circuit avoided the jurisdiction stripping restrictions of that statute (the petition was filed in 1992). The Ninth Circuit panel engages in a lengthy procedural history of petitions Sechrest filed in state and federal court, the appeals, motions for reconsideration, and finally the panel concluded the federal courts have jurisdiction if the state court did not apply its procedural default rules with regularity and consistency. The Nevada state court retains discretionary power to consider procedurally defaulted claims. This judicial safety valve inures to the benefit of the defendant /petitioner yet is criticized by the Ninth Circuit panel as applied to applicants irregularly. (How else do you apply discretionary power?) In any event, after reviewing an extensive procedural maze, the Ninth Circuit decides it has jurisdiction. The Ninth Circuit panel disposes of the evidence summarily: (Paraphrasing) "The defendant/petitioner kidnapped and murdered two young girls." Although there is no dissenting judge in the Sechrest decision, the reader must assume the panel agreed that the prosecutor misstated the imposition of Nevada death penalty law in his voir dire and closing argument. Apparently the prosecution called no medical expert at the death penalty hearing but by stipulation defense counsel agreed to permit the prosecution to call its doctor as a witness. According to the prosecution, with some exceptions, the jury was aware of all of the doctors evidence elicited from other witnesses. Permitting a defense doctor who interviewed the defendant to testify as a prosecution witness is unusual. The district court found the decision unobjectionable-as did the Nevada Supreme Court- but the Ninth Circuit dismissed these findings. Although no defense lawyer would offer his medical witness unless qualified as an expert, the Ninth Circuit says nothing about the qualifications of the witness. But the Ninth Circuit panel lauds the doctors testimony and contends his expertise would carry more weight with the jury. No trial lawyer would agree with this opinion. That the prosecutor misstated the rules of parole on voir dire is de minimus error. Jurors do not remember all the questions asked and answered prior to presentation of evidence in a capital case. In his closing argument the prosecutor briefly cited Nevada law regarding the death penalty and the possibility of parole for the defendant. The Ninth Circuit selects this brief statement and singles it out for criticism. The court never states what really happened at trial. And the answer is obvious: the evidence was overwhelming, counsel had no chance of mitigation, and the murder of two young helpless children warrants the death penalty. Twenty five years after conviction and the defendant continues to remain in court. The State of Nevada must either try the sentencing phase of the case again or the court will re sentence him to life imprisonment. And maybe Sechrest is eligible for parole.

Saturday, December 20, 2008

Instructional Error: Pulido v. Hedgpeth, 487 F.3d 669 (9th Cir. 2007)

The Supreme Court has reversed another Ninth Circuit case with the familiar rhetoric that the appellate court had ignored precedent. The Ninth Circuit used the wrong test for an alleged error in instructing the jury. In fact, on appeal the defendant himself agreed the Ninth Circuit used the wrong test; Hedgpeth v. Pulido, 129 S.Ct. 530 (2008). Remanded to the Ninth Circuit. The facts in this case are recorded in an earlier blog entitled "Instructional Error;" 3/6/08 The Ninth Circuit remanded to the district court to determine whether the correct test for instructional error is "harmless" rather than "structural." Why is it necessary to return the case to the district court? The record is already completed for appeal and no further factual findings are necessary; Pulido v. Chrones, 559 F.3d 789 (9th Cir. 2009). Subsequently, the Ninth Circuit panel vacated its remand order and ordered supplemental briefing; Pulido v. Chrones, 576 F.3d 3d 1142 (2009).

Thursday, December 11, 2008

Doody v. Schriro, 596 F.3d 620 (9th Cir. 2009); Cert. Granted & Reversed; Ryan v. Doody, 131 S.Ct. 456 (2010); on remand 9th Circuit reversed again; 646 F.3d 626

Here is the opening paragraph of the 9th Circuit decision in Doody v. Schriro [Warden], 566 F.3d 839 (2009) reviewing on habeas corpus an Arizona Court of Appeals decision affirming conviction of one Jonathon Doody: Seventeen-year-old Jonathon Doody was interrogated overnight for twelve hours straight. When after several hours, he fell silent and refused to answer the officers questions, the officer persisted, asking dozens of questions, many over and over again, and telling him he had to answer them. The resulting confession was used in Arizona state court to convict Doody of multiple counts of murder and robbery; Doody v. Schriro [Warden] 548 F.3d 847 (9th Cir. 2008).
With that obviously biased statement, the conclusion in the case is forgone. Once again the 9th Circuit overrides the Arizona Court of Appeals who had originally heard this case on appeal and concluded the confession was voluntary. Doody was tried in 1991 and this case decided by the 9th Circuit in 2008. Post conviction relief in state court denied, Doody sought habeas corpus in federal court.

Seventeen years after conviction, the Ninth Circuit reviewed the evidence convicting Doody for the vicious crime of murdering six helpless Buddhist monks in their temple. Police had immediately launched a massive investigation after discovery of the bodies, and the murder weapon had been found in a car belonging to a roommate of Doody. The roommate told police that Doody and one Garcia had borrowed the weapon.

During a preliminary interview with Doody, officers learned of his familiarity with the temple, having visited his brother several times at that location. Later, after learning Doody had borrowed the murder weapon, officers formally interviewed him. This interview, and its admissions by Doody, was the subject of review in the Arizona trial court. Garcia pled guilty to nine counts; testified at trial against Doody; was sentenced to life imprisonment; and avoided the death penalty pursuant to a plea bargain in exchange for his testimony against Doody. According to Garcias' testimony, Doody planned the murder.

The trial court conducted a ten day hearing on a motion to suppress the confessions of Doody and Garcia. Doody did not testify at the hearing, the trial court denied the motion, and admitted the evidence at trial based on the taped audio confession supplemented by testimony from the officers. The jury convicted Doody of felony murder. On appeal, the Arizona Court of Appeal also listened to the audio confession. The tape included an adequate and informed Miranda warning and Doody agreed to talk. The Arizona Court of Appeals found the Miranda waivers acceptable and the confession voluntary. The 9th Circuit found the Miranda waivers acceptable but the confession involuntary.

At the trial, the prosecution established the waiver of Miranda and introduced the confession. Within two hours of the interview with the officers, Doody implicated himself. Four hours later he conceded his culpability although denying he used the shotgun. The 9th Circuit invoked all the standard case law on voluntary confessions, criticized the thirteen hour police interview, and held it involuntary despite adequate Miranda waivers. The Arizona court examined the same records as the 9th Circuit and held the confession voluntary.

The 9h Circuit decision is completely at odds with the Antiterrorism and Effective Death Penalty Act (AEDPA) prohibiting precisely this kind of federal court second guessing the state courts; 28 U.S.C. 2254. The Arizona trial court held a ten day hearing, the trial judge listened to the tape and observed other witnesses who testified-except Doody who did not testify. Reasonable minds can differ whether the confession was voluntary, although the trial judge-and the jury-and the Court of Appeals all found the confession voluntary. Under AEDPA the statute limits jurisdiction of federal courts reviewing habeas corpus of state court cases unless the state court decision is unreasonable, not just incorrect.[Citations omitted).

Here is the 9th Circuit reasoning: Garcia testified Doody planned the murder, i.e., premeditated killing the monks, an element necessary for conviction of first degree murder. The jury found Doody guilty of felony murder, i.e., the killing of another in the course of committing a felony. Therefore, said the 9th Circuit, the jury believed Doody did not premeditate, only complicit in the felony murder. Therefore, the conviction could have been based on Doodys' confession alone.

This kind of reasoning defies common sense, is based on sheer speculation, and is another example of a clear violation of AEDPA. The trial took 34 days, other witnesses testified, the jury found Doody guilty. Seventeen years later, unless any witnesses are available, a confessed murderer will be free. The most disturbing element in this case is the manipulation of the evidence supporting the confession. Upon reading the Ninth Circuit summary of the confession, a reasonable interpretation is possible. Until you read the Arizona court review of the same evidence, also a reasonable interpretation. And the 9th Circuit ignores AEDPA. Again. The underlying rationale of this decision: prohibit imposition of the death penalty. The Supreme Court reversed the 9thCircuit and ordered it to reconsider; Ryan v. Doody, cited above.
On reconsideration the 9th Circuit rewrote its opinion and refused to affirm this conviction now twenty years old; 2011 WL 3512283.   

Monday, November 10, 2008

Brady Rule Applies Before & After Trial; Osborne v. D.A., 521 F.3d 1118 (9th Cir. 2008)

Post conviction under 42 U.S.C.1983: Osborne v. D.A., 521 F.3d 1118 (9th Cir. 2008) Note: This decision reversed by Supreme Court; 129 S.Ct. 488 (2008). See below. The Supreme Court granted cert. in this Ninth Circuit case (District Attorneys Office for Third Judicial District v. Osborne, 521 F.3d 1118 (9th Cir. 2008)) and reversed the Ninth Circuit; 129 S.Ct. 488 (2009). See, Blog, July 10, 2009 for Supreme Court opinion. In 1994, William Osborne was convicted of kidnapping and sexual assault in Alaska state court and sentenced accordingly. The victim testified two black men drove her to a secluded area near Anchorage, brutalized and raped her and attempted to kill her. Police amassed corroborating evidence at the scene of the rape as described by the victim; witnesses saw the victim in the company of Osborne prior to the crime; Osborne confessed to his mother; he wrote a confession admitting the crimes. Police found a condom in the vicinity of the attack, and a DNA test of semen and hairs confirmed the identity of a black male. Osborne began the familiar appellate dance and the Alaska Supreme Court affirmed the conviction but ordered a post conviction hearing when Osborne contended he wanted a more sophisticated DNA test unknown at the time of his trial in1994 (fourteen years ago). At the trial, he had refused to provide a blood sample for testing on advice of counsel because the defense consisted of alibi and his counsel wanted to go to the jury on the weakness of the prosecution case. Osborne had confessed to the crime orally to relatives and in writing to police. Osborne never raised ineffective counsel in any state or federal court. Osborne argued to the Alaska Supreme Court that the DNA test at trial revealing the percentage of black men who carried the same gene was replaced by modern DNA testing. He requested the Alaska Supreme Court to hear his petition for review on two occasions seeking disclosure of the evidence introduced at trial in order to conduct new testing. The Alaska court denied his requests. Barred by the Anti-terrorism & Effective Death Penalty Act (AEDPA) and its one year statute of limitations to file federal habeas corpus, Osborne filed a 42 U.S.C.1983 complaint in federal court alleging disclosure of testing results qualified as a predicate for alleging factual innocence under federal law. The Ninth Circuit faced a heavy burden to grant relief to a state prisoner whose conviction was affirmed twice on appellate review, post conviction relief denied, and Osborne never asserted factual innocence. Undeterred, the Ninth Circuit panel ignored Alaska state court findings, minimized the evidence at trial, denied abstention, and held Osborne did not have to establish factual innocence. Needless to say, the Supreme Court granted review. The Ninth Circuit grounded its decision in Brady v. Maryland, 373 U.S. 83 (1963), a Supreme Court case mandating the prosecution to disclose to the defense any pre trial exculpatory evidence. There is no evidence in this case to support that contention. Citing its own Ninth Circuit precedent, and no Supreme Court decisions, the panel held the Brady rule applies to post conviction disclosure of exculpatory evidence. The Ninth Circuit panel, oblivious to the testimony of Osbornes counsel at a post conviction hearing that she had declined a prosecution request at trial for a blood sample, permitted Osborne to challenge his conviction fourteen years after trial. What are the chances of the prosecutor obtaining evidence from witnesses and locating the tangible evidence necessary for testing after this lapse of time? The defense cross examined the witnesses who testified for the prosecution explaining the DNA results. Osborne had an opportunity to establish his innocence by providing a blood sample at trial and refused to do so. Now, fourteen years later, he seeks the evidence he initially refused to produce. The Ninth Circuit held that Alaska used the wrong test ( the Alaska rule) in denying Osborne his request. The Ninth Circuit panel ruled its own legal test was correct-and less stringent.

Tuesday, November 4, 2008

Death Penalty (Styers v. Schriro) [Warden], 547 F.3d 1026 (9th Cir. 2008)

Convicted and sentenced to death in an Arizona state court eighteen years ago for the murder of a four year old child, Styers began the familar appellate dance. The Arizona Supreme Court affirmed the conviction although it reversed one count alleging pecuniary gain. On appeal in state court from his conviction and to avoid the death penalty, Styers offered evidence he suffered from posttraumatic stress disorder attributable to his service in Vietnam. The Arizona court wrote: "This could, in an appropriate case, constitute mitigation [of the sentence]. . . However, two doctors who examined defendant could not connect defendant's condition to his behavior at the time of the conspiracy and murder." Styers filed habeas corpus in the Ninth Circuit. In what can only be characterized as rhetorical legerdemain, the Ninth Circuit three judge panel writes that by including the word "however" in that quoted sentence (a "conjunctive adverb," said the court) the Arizona court indicates the absence of causation between the disorder and the crime. According to the Ninth Circuit panel, causation is not the test, and the court must consider all the evidence without including that element. Therefore, this evidence was not considered as a mitigating factor by the trial judge in sentencing the defendant to death. This statment misreads the Arizona Supreme Court decision. That court is saying the doctors found no evidence of any disorder. In other words, any evidence of stress was absent and irrelevant to the trial court decision. The Ninth Circuit panel remanded for re sentencing. Given the heinous nature of the crime in murdering a helpless four year old child, the decision to return this case to the trial court for re sentencing is inexplicable. Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008)

Sunday, October 12, 2008

Qualified Immunity in Gang Murder (Torres), 548 F.3d 1197 (9th Cir. 2008)

Probable Cause and Qualified Immunity: 9/22/2008 Torres v. City of Los Angeles, 540 F.3d 1031 (9th Cir. 2008); withdrawn Note: on Nov. 13, without any explanation, the court withdrew its previous decision (reported below) and wrote a decision sustantially the same; Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008). Gang killings are indisputably the most difficult cases to prosecute. Witness intimidation is rife and witnesses lack credibility or are offered immunity. A witness in Torres v. City of Los Angeles, the girlfriend of a man who killed two other gang members, identified Torres as a passenger in the car when the driver (subsequently arrested) fired the shots. Admittedly the identification of Torres was imperfect but the Ninth Circuit ignored the fact that her boyfriend shot two men during a car chase. A passenger riding in a moving car with a driver involved in a shooting cannot describe all the details. Police arrested Torres based on the witness's incomplete identification and with information he was a gang member who had flashed gang signals to the occupants of the other car. After reviewing the evidence, the panel found the officers lacked probable cause. The evidence of Torres' culpability is a close question but enough to at least arrest him. Not in the Ninth Circuit. And this panel denied the officers qualified immunity, despite the fact the trial judge ordered all officers dismissed from the case. Note: One of the cases cited by the Ninth Circuit panel to support their conclusion the officers lacked probable cause to arrest Torres was Devenpeck v. Alford, 543 U.S. 146 (2004)-a Ninth Circuit case reversed by the Supreme Court.

Wednesday, October 8, 2008

Accomplice Liability: Waddington v. Sarausad, 503 F.3d 1031 (9th Cir. 2008)

Note: Supreme Court subsequently reverses Ninth Circuit: 129 S.Ct. 823 (2009) Despite Congressional efforts imposed by the Antiterrorism & Effective Death Penalty Act (AEDPA; U.S.C.A. 2254 d (1) (2) to reign in federal Circuit Courts of Appeal on petitions for habeas corpus, the Ninth Circuit continues to evade statutory limitations. In addition, the court cannot agree on which section of the Act applies to specific fact situations. Defendant Sarausad was charged as an accomplice to murder and convicted by the jury. On direct appeal from Sarausad's conviction, the Washington Supreme Court clarified a jury instruction on accomplice liability and affirmed. Sarasuad's state post conviction petition was denied, but the U.S. District Court granted his federal petition. On appeal, the legal issue in the Ninth Circuit consisted of the allegedly "ambiguous" jury instruction on accomplice liability in the murder charge. A Ninth Circuit panel initially wrote Waddington v. Sarasuad in 479 F.3d 671 (9th Cir. 2007) reversing the state court conviction but the court granted an en banc hearing. En banc, the court affirmed its original opinion with several judges dissenting; Waddington v. Sarausad 503 F.3d 833 (9th Cir. 2007). The Supreme Court granted cert. and will undoubtedly reverse the Ninth Circuit; 128 S.Ct. 1650 (2008). Again. 

Tuesday, September 30, 2008

Federal Habeas Corpus Reigned In : Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2008)

In Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007) a three judge panel of the Ninth Circuit upheld Congressional enactment of 28 U.S.C. 2254 (d) (1) formally known as the Antiterrorism & Effective Death Penalty Act (AEDPA). A petition for rehearing and rehearing en banc was denied.Five judges dissented from the denial of rehearing and one dissenter wrote an opinion contending Congress lacked power to enact AEDPA. Crater became the law of the circuit but another Ninth Circuit panel was considering the same issue in Irons v. Carey, 505 F.3d 846 (9th Cir. (2007) and decided after Crater. One of the judges in Irons sought supplemental briefing from counsel on the Constitutional authority of Congress to enact AEDPA, clearly signaling Congress acted in violation of the separation of powers doctrine. After supplemental briefing, the Irons court grudgingly acknowledged Crater foreclosed their opinion as precedent in the Ninth Circuit.For that reason the author of the Irons opinion wrote the dissent in Crater.Only four other judges joined his opinion. The Crater court confines itself to a discussion of separation of powers and the right of Congress to limit federal intervention in reviewing state court convictions.AEDPA restricts federal courts from issuing a writ of habeas corpus unless the claim asserted by a state court prisoner "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Although this language is not explicit, the statute unmistakably aims to curtail the power of federal courts. Although the Supreme Court has not expressly determined the constitutionality of AEDPA, the Justices have had the opportunity to address the issue and declined to do so; Williams v. Taylor, 529 U.S. 362 (2000). Reasonable minds can differ on the separation of powers doctrine.But the language of the dissenting judge in the denial of rehearing is disturbing, even approaching arrogance.The judge frequently refers to the curative power of federal courts in correcting the judgment of state courts."Thus, the federal court is required under AEDPA to uphold a state court proceeding that it determines violated the Constitution. . . Other language proclaims the superiority of federal courts in reviewing state court convictions different than their own interpretation.The irony lies in a federal court correcting state courts when the Supreme Court has reproached the Ninth Circuit repeatedly for ignoring precedent and wrongly interpreting the law in 21 out of 22 cases during the 2006-2007 term. In an earlier Blog (Click on Blog, above) entitled "Vindictive Prosecution" we reviewed USA v. Jenkins, 504 F.3d 694 (9th Cir. 2007) foreclosing prosecutors from prosecuting Sharon Jenkins for a crime she testified to committing on the witness stand defending herself from charges of another crime.The petition for rehearing en banc was, astonishingly, denied over the dissent of seven Ninth Circuit Judges.The lead judge in dissent wrote this: "By concluding that prosecutors should have sacrificed the resources necessary to pursue the charges before Jenkins admitted to the crimes under oath, the opinion oversteps our judicial function. . . the Jenkins opinion creates the preposterous rule that a defendant can shield himself from future prosecution for unrelated crimes by openly admitting to them on the stand;" Jenkins.

Saturday, September 27, 2008

Immigration: Case withdrawn without explanation: Almousa v. Mukasey, 518 F.3d 738 (9th Cir. 2008)

The Ninth Circuit issued an order withdrawing the published case of Khalid Me Almousa, 518 F.3d 738 (9th Cir. 2008) and denying the right of counsel to cite the case in the future. The petition for panel rehearing was granted. A petition for rehearing en banc may be filed; 2008 WL 4330339. On rehearing, the 2-1 majority filed a non published decision; 294 Fed. Appx. 277 All without explanation by the court. The Immigration Judge (IJ) denied Almousa's request for asylum. On appeal, Almousa contended he was a minor, and the Ninth Circuit 2-1 majority remanded the case to the IJ to determine whether this issue, never raised before in any proceeding, precluded his deportation. Here is the dissent: . . ."this issue [minority] was not raised in the asylum application itself, before the IJ or in [Almousa's] pro se appeal." And quoting the majority, "'[age] may provide an exception to the exhaustion rule'. . . Absolutely no supporting authority is cited to bolster this novel attempt to bootstrap us into jurisdiction over an unexhausted issue." And on the merits the dissenting judge wrote:"This [case] is a quintessential factfinding function that should not be hijacked on appellate review. Note: a petitioner must "exhaust" his administrative and procedural remedies in papers filed in support of his application before the IJ or otherwise forfeit the right to allege those claims on appeal.

Friday, September 19, 2008

Labor Law : Supreme Court Reverses Ninth Circuit; Chamber of Commerce of U.S. v Brown, 128 S.Ct. 2408 (2008)

During its last term, the Supreme Court reversed the Ninth Circuit in twenty out of twenty two cases. Included in this list the Court decided Chamber of Commerce of U.S v. Brown, 128 S.Ct. 2408 (2008), a decision interpreting a California statute clearly favoring labor by forbidding employers to enage in any non union activity if they accepted grants in excess of $10,000. The Ninth Circuit cast aside all objections to this one sided statute, and the Chamber appealed. The Supreme Court reversed in this language: "The Court of Appeals' judgment reversing the summary judgment entered for the Chamber of Commerce is reversed and the case is remanded for further proceedings consistent with this opinion." On remand to the Ninth Circuit, here is its order: "This case was remanded to us from the United States Supreme Court (citation omitted). In light of the Supreme Court's decision we vacate our opinion . . ." The Supreme Court did not just "remand" the case. The Court "reversed" and remanded. You would never know that by reading the Ninth Circuit interpretation of the Supreme Court order.

Wednesday, September 10, 2008

Four Reversals: Cox v. Del Papa, 542 F.3d (9th Cir. 2008)[Miranda]; Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008) [Exclusion of Juror]; Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2998 [(Prison Regulations]; Rodriguez v. U.S., 542 F.3d 704 (9th Cir. 2

Three reversals plus one a waste of time. All decided by the Ninth Circuit in one day. Cox v. Del Papa (Warden), 542 F.3d 669 (9th Cir. 2008): [Miranda and competency hearing for waiver of Miranda rights]; Paulino v. Harrison (Warden), 542F.3d. 692 (9th Cir. 2008): [Exclusion of jurors on racial grounds]; Rodriguez v. Smith (Warden), 541 F.3d 1180 (9th Cir. 2008): [Prison regulations]; Rodriguez v. U.S., 542 F.3d. 704 (9th Cir. 2008): [Damages against the government awarded to illegal aliens.] 1. Cox v. Del Papa (Warden), 2008 WL 4070435 (C.A.9): The Ninth Circuit spent innumerable pages in determining whether to grant habeas corpus in a state court conviction in which the prisoner alleged the trial court should have been given him a competency hearing to determine whether he knowingly and voluntarily waived his Miranda rights. To resolve this frivolous question both sides had to call psychiatrists. 2. Paulino v. Harrison (Warden) (II), 2008 WL 4970694 (C.A.9): Reversed a state court conviction on grounds the trial court did not seek a reply from the prosecutor to defense counsel who questioned prosecution challenges to minority jurors pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). In fact, the trial judge concluded the challenges were justified from his own observation of the excused jurors and required no reason the prosecutor needed to reply. The Ninth Circuit begins its decision by misprinting the date the state court jury convicted Paulino of murder, but in 2004 the court had earlier decided a procedural question in this case on habeas subsequent to the state conviction; Paulino v. Castro (I), 371 F.3d 1083 (2004). That decision also did not contain the date of conviction. Paulino having previously filed habeas petitions in state court (denied) prior to filing in federal court, his probable date of conviction is in the late1990s. In other words, the Ninth Circuit decided Paulino II on September 4, 2008, approximately thirteen years after conviction. The prosecutor used five of her six peremptory challenges to excuse African Americans during voir dire of the jury. The final jury consisted of one African American. Only after the fifth strike did defense counsel object on Batson grounds. In a colloquy with counsel at the bench, the trial judge [found] that there were objective reasons for all of these jurors to be excused . . . I can see the objective reasons that seem to be present here . . . The prosecutor made no comment but when defense counsel called the courts attention to the statistical disparity of prosecution strikes, the court said: I can understand why [the prosecutor] would be uncomfortable with each of [the jurors]. The trial judge continued: "But when I look at every one, juror number three and all the people she knew that had been arrested-and I don't think she told us all the ones she knew. If you kinda go down the line, I can see why [the prosecutor] would be uncomfortable with each of them. Based on that, I find no prima facie case." Under the Batson test, the burden is on the moving party to establish an inference of racial bias when counsel excuse jurors. In effect, the defense makes the objection, the prosecutor replies and the judge decides. The rules are more detailed but this three step process must occur according to the Ninth Circuit, and the judge in Paulino II failed to ask the prosecutor for her reasons in excusing jurors. Obviously the trial judge, who must ultimately resolve a defense objection, simply dispensed with the need for the prosecutor to explain the reasons for her strikes because justification was so obvious. The Supreme Court has repeatedly reminded appellate courts in general, and the Ninth Circuit in particular, to defer to the trial judge who occupies the best position to assess prosecutorial rationale for striking jurors; Rice v. Collins, 546 U.S. 333 (2006). The judicial decision is usually contingent on the prosecutors reasons. But if the reasons are so obvious to the court, what is the point of a formalistic review of the second step? If the court observes the jurors and concludes the reasons for strikes are obvious, what is the reason for holding this procedural dance? The Ninth Circuit panel in Paulino cites its former opinion as precedent; Yee v. Duncan, 463 F.3d 8983 (9th Cir. 2006). In Duncan, the prosecutor explained his reasons for excusing seven out of eight minority jurors but could not remember the reason for excusing one other juror. Although the state court affirmed the conviction, the Ninth Circuit granted habeas corpus on grounds that inability to explain excusing a single juror without explanation violated the Batson test. The court also cites Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995). "[w]e concluded that the 'prosecution's exclusion of five out of nine available African American venirepersons removed a sufficient percentaage of African-Americans to establishe a pattern of discrimination.' In Turner, four African Americans (out of twelve) remained on the jury. Removing 55% was sufficient to to raise an issue of discrimination. In other words, voir dire will be reviewed as a quota. Here's a quote from another judge in Paulino: "But it does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real (italcis in original) reason they were stricken." (Is this coherent?) Note: The prosecution is unlikely to retry Paulino after the passage of years. Another injustice. A more questionable result in Paulino also occurred when the Ninth Circuit panel refused to be bound by the Anti-Terrorism and Effective Death Penalty Act (AEDPA) U.S.C. 2254, the federal statute requiring deference to state courts which had already affirmed the conviction. According to the Ninth Circuit, in yet another attempt to evade AEDPA, the state court used the wrong standard. 3. Rodriguez v. Smith (Warden), 2008 WL 4070264 (C.A.9) Congress has enacted numerous statutes governing the management of prisons, and implementation of the rules is the responsibility of prison officials. Acting upon the advice of the Office of Legal Counsel, the Bureau of Prisons applied one of the rules to prisoner Rodriguez. Another rule, arguably conflicting, enabled the Ninth Circuit to find the two statutes ambiguous. The majority of the court panel (2-1) rejected the opinion of Office of Legal Counsel, and, citing its own precedent, held the ambiguity favors the prisoner. Rodriguez exemplifies another Ninth Circuit decision siding with a prisoner after construing the alleged ambiguous statutes in his favor. As the dissent in Rodriguez points out, the panel majority ignores Supreme Court decision to the contrary. 4. Rodriguez v.U.S., (different Rodriguez) 2008 WL 4070886 (C.A.9): Critics of illegal immigration frequently cite the cost of enforcing federal law to curb entry and deportation of illegal aliens. In addition, these critics ought to include the cost of a recent civil suit filed in federal court by plaintiffs who were awarded almost one million dollars, plus attorney fees, for an alleged unlawful entry into a house by an immigration agent seeking an illegal alien. The one million dollars does not include the cost of agent salaries, the trial judge, the U.S. Attorney staff, and court staff and appeal-an appeal remanded for further hearing on attorney fees. At taxpayer expense.

Wednesday, August 27, 2008

Fourth Amendment; Strip Searches Restricted: Bull v. City and Co. of S.F., 539 F.3d 1193 (9th Cir. 2008)

Strip Searches Bull v. City & County of San Francisco 539 F.3d 1193 (9th Cir. 2008) August, 2008 [B]y disregarding jail administrators urgent concerns about serious contraband smuggling problems, I agree with the [dissenting judge] that we are potentially putting lives in the San Francisco detention system at serious risk. This quote reflects the opinion of a Ninth Circuit judge reluctantly concurring with the decision of another judge in the three judge panel. The author of the lead opinion denied San Francisco authorities the right to conduct body cavity searches of pre detention arrestees transferred to the general jail population unless evidence of reasonable suspicion or other limited conditions justifying a search exists. And this language from the same concurring judge in Bull: By effectively eliminating . . . security concerns from our calculus, we contradict Supreme Court precedent and common sense and take upon ourselves a rule unsuited for the courts . . . Judges must guard against the all-too-human tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination; Bell v. Wolfish, 441 U.S. 520 (1979). No one doubts the serious invasion of privacy implicated in strip searches. But the privacy factor in jails and prisons differs substantially from any other category of search by public officials. The dissenting judge in Bull writes of the Ninth Circuits serious departure from the Supreme Court acknowledgment of this factor in its Fourth Amendment jurisprudence. San Francisco produced extensive and overwhelming evidence of drug smuggling in the jails and the inability to exercise control in the absence of searching authority. The Fourth Amendment requires all searches conducted by public officials must be reasonable but that word and its application are contingent on the context. The Supreme Court in Bell balanced the significant and legitimate security interests of the institution (jail) against the privacy interest of the inmates, and held a visual cavity inspection . . . can . . . be conducted on less than probable cause. Other language in Bell clearly recognizes the need for strip searches in jail facilities. Despite this clear approval of strip searches by the Supreme Court, the Ninth Circuit undertook its own analysis of institutional and privacy interests and basically ignored the Bell decision. Strip searches, according to the majority panel, violate our clearly established (by the Ninth Circuit) Fourth Amendment rights. The author of the lead opinion in Bull disposed of Bell in one paragraph and cites contrary Ninth Circuit precedent as authority for the following rule: Unless the pre detention inmate was arrested for weapons violations, drug offenses, violence, violation of probation or parole, or manifests individualized suspicion, and despite eventually housing them in the general jail population, jailors may not conduct strip searches. The lead opinion in Bull ignores the fact that those arrested in categories unrelated to those subject to search described above can also conceal weapons or contraband. The criminal record of an arrestee jailed for any offense is often unknown at intake. Similarly, whether an arrestee is on parole or probation is often unknown until time develops a record match. Gangs are notorious for intimidating other inmates in the prison population or demanding they obtain narcotics. The concurring judge in Bull is correct. The judiciary is the least equipped institution to render the kind of decision in Bull. Undoubtedly a rehearing or rehearing en banc will ensue if, for no other reason, based on the language of the concurring judge who felt bound by Ninth Circuit precedent but clearly expressed disagreement with the result. Bull squarely contradicts Supreme Court precedent, and the Justices should review this Ninth Circuit opinion unless withdrawn, amended, or reheard and reversed by itself or the full panel. Note: this case was submitted November 6, 2007 and decided August 25, 2008-nine months later. The Ninth Circuit has granted a rehearing en banc in this case: 558 F.3d 887 (9th Cir. 2009).

Thursday, August 14, 2008

Immigration: Ninth Circuit Applies Exclusionary Rule to Illegal Immigration: Lopez & Gastelulm v. Mukasey, 536 F.3d 1012 (9th Cir. 2008)

Luz Lopez-Rodriguez & Fabiola Gastelum Lopez v. Mukasey 536 F.3d 1012 (9th Cir. 2008) Under a variety of rationales, the Supreme Court has permitted certain types of administrative searches which did not lend their application to conventional Fourth Amendment analysis; Camara v. Mun. Ct. of San Francisco, 387 U.S. 523 (1967). The Court has sanctioned various warrantless searches of railroad employees, narcotic enforcement personnel, check points for drunk driving, border searches, customs and airport searches, and immigration searches. The Supreme Court has repeatedly criticized and reversed the Ninth Circuit for their decisions on border searches and immigration searches inside the United States, not on the ground of special needs but the right of a sovereign to preserve its territorial integrity. Yet, given the Ninth Circuit record on immigration appeals, deference to the INS is unlikely as illustrated in Luz Lopez-Rodriguez & Fabiola Gastelum Lopez v. Mukasey, 2008 WL 3168847. In October 2000, Immigration & Naturalization Service agents (INS; re named in 2003) received information that Gastelum had entered the country illegally and was living at a specific address. According to the immigration judge, Agents entered the house, without consent, and, after Gastelum lied about her nationality and birthplace, learned that she and Luz Lopez, another woman living in the house, were in the country illegally. Gastelum signed a declaration admitting her illegal entry and the agents filled out forms for deportation. The immigration judge ordered removal of both women. On appeal to the Ninth Circuit, a two judge majority panel agreed the entry to the home was without a warrant and lacked consent of either woman. Under the Fourth Amendment, an illegal entry to a residence causes any evidence thereafter seized inadmissible in a criminal proceeding, but the Supreme Court has ruled the Fourth Amendment exclusionary rule does not apply in deportation proceedings where the sole issues are identity and alienage-unless an egregious violation of the Fourth Amendment occurs; INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). That decision did not deter the Ninth Circuit panel in Gastelum. Finding the entry to the residence in violation of the Fourth Amendment egregious, the panel excluded the deportation form executed by the agents and the Gastelum declaration she entered the country illegally, and dismissed the proceedings. The immigration form executed by the agents is neither contraband, drugs, stolen property, weapons or instrumentalities of crime. No evidence was seized from anyone or anywhere. The court cites no precedent for this decision, in effect, allowing two admittedly illegal aliens to continue to reside in the United States. And the court does not question why a simple year 2000 arrest was decided eight years later. This judicial use of the exclusionary rule to exclude evidence (INS forms and a declaration) is another example of its abuse already criticized by the Supreme Court. The only issue in deportation proceedings is identity and alienage. Identity in this case was undisputed and Gastelum not only lied to the agents but admitted her ineligibility to remain in the United States. According to the panel, the Fourth Amendment violation was egregious. This word has no boundaries, is highly subjective and establishes no standards other than the Ninth Circuit definition: evidence . . . obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should [have known] is a violation of the Constitution. This statement will cause a chilling effect on immigration enforcement agents because it mirrors the law conferring immunity on police officers in civil cases. Immunity is invoked by public officials in proceedings alleging statutory violation of civil rights, not deportation proceedings. The dissenting judge in Gastelum, citing Lopez-Mendoza, 468 U.S. @ 1040-51, sounds this alarm, aware of the Ninth Circuit predilection for reversing immigration cases and denying immunity to police officers in cases alleging violation of Constitutional rights. The judge wrote: The Supreme Court determined that the high costs of the exclusionary rule rendered it too costly to apply in immigration proceedings . . . Our case law appears destined to import the exclusionary rule, with all of its attendant costs, back into immigration proceedings. This is not the first case the Ninth Circuit has written adopting an exception to an unambiguous Supreme Court rule. Here is their exception in Gastelum to the Supreme Court rule that the exclusionary rule is inapplicable in deportation proceedings: ...[If] the agents committed the violations deliberately or by conduct a reasonable officer should have known;" Orhorhaghe v. INS, 38 F.3d 488 (1994). Given the number of Ninth Circuit decisions on the Fourth Amendment reversed by the Supreme Court, and innumerable decisions written by state and federal courts disagreeing on whether officers committed a violation of the Fourth Amendment, this decision is absurd. And the immigration judge saw no egregious violation either when she ordered deportation.

Wednesday, August 6, 2008

Ineffective Counsel (13 years after conviction): Moore v. Czerniak, 534 F.3d 1128 (9th Cir. 2008)

Moore v. Czerniak, [Warden] 534 F.3d 1128 (9th Cir. 2008). See, Blog entry, August 1, 2009 Note: this opinion was withdrawn and published as 574 F.3d 1092 (9th Cir. 2008). Randy Moore and others beat Kenneth Rogers until he bled, stripped him, bound him in duct tape, placed sin in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint. While marching Rogers through the woods, Moore shot Rogers-accidentally he said-through the temple. Moore confessed the details to his older brother Raymond and his girlfriend. He then talked to police, [not while in custody], corroborating the evidence the police had already obtained. These facts, taken verbatim from the dissenting judges opinion in this case, are undisputed and provided by Moore himself. Before the prosecution sought his indictment, defense counsel negotiated a plea bargain with the prosecutor in which Moore obtained the lowest sentence available under Oregon law for felony murder. But according to the Ninth Circuit panel majority (2-1), counsel should have made a motion to suppress Moores confession. Had counsel done that, said the majority panel, he would be in a better position to negotiate a plea other than the harsh sentence he recieved. (The appropriate sentence for Moore, based on kidnapping and murder, was the death penalty.) The majority focuses on failure of counsel to file a motion to suppress Moores confession on the grounds the police violated Miranda and promised him leniency. Neither the Oregon courts reviewing the conviction, and holding an evidentiary hearing, nor the U.S. District Court reading Moores petition for habeas corpus thought so; State v. Moore, 951 P.2d 204 (1997). Both these courts noted that prior to his confession to police, Moore had confessed to his brother and girlfriend. In an evidentiary hearing in state court, the brother repeated the essence of the confession and there is no indication he and the girlfriend would not testify for the prosecution. Nevertheless, for purposes of the appeal, the majority and the dissent assumed the confession to police inadmissible; 951 P.2d 204 (2001). The dissenting judge contends the majority again display a total misunderstanding of criminal law and procedure: The majority . . . reflect an almost willful ignorance of the record evidence and the realities of criminal defense representation. In the first place, the prosecution had not indicted Moore, enabling him to plead without the necessity of an Information that would have alleged, burglary, kidnapping, and felony murder. Secondly, a co-defendant refused to accept any plea bargain, went to trial, and the jury found him guilty; third, if counsel wanted to suppress the confession to police by motion, the prosecution would have resisted and obviously withdrawn the plea agreement; fourth, a trial for felony murder and kidnapping is subject to the death penalty. Other than the multiple confessions, the evidence is overwhelming. A co-defendant led police to the location of the weapon used by Moore; police seized the car used in the kidnapping containing duct tape concealing the license plates; several other witness saw Moore leave a house with Rogers and other co defendants. Lastly, the defense attorney in his affidavit explained all the options available to the defendant prior to entering the plea. The legal issue is applicability of the seminal Supreme Court case in Strickland v. Washington, 466 U.S 668 (1984) holding a defendant is entitled to effective counsel, not just a sham representation. In Moore, counsel presented an affidavit at a post conviction hearing outlining his representation. The dissent notes counsel is an experienced criminal defense lawyer and does not limit his remarks to Moores confession. Counsel explains in detail that the two confessions of Moores brother and his girl friend adequately supported the prosecution. Brushing aside the Antiterrorism & Effective Death Penalty Act (28 U.S.C. 2254) requiring deference to state court decisions, the majority faults counsel for not moving to suppress the confession, citing a Supreme Court case acknowledging the importance and devastating evidence of a confession; Arizona v. Fulminante, 499 U.S. 279 (1991). An obvious truism, except Moore never cited the case in his brief on appeal, and in any event the confession in Fulminante concerned a post conviction confession after trial, not prior to a plea agreement. The majority ignores the leading case on ineffective counsel when a plea is taken and the Supreme Court has reminded the Ninth Circuit on more than one occasion, particularly when reviewing a state court conviction on habeas corpus, that second guessing and ruminating about alternatives available to counsel is forbidden to an appellate court; Hill v. Lockhart, 474 U.S. 52 (1985). Here is the Supreme Court test, ignored by the majority, to set aside a plea bargain on grounds of ineffective counsel: . . . the defendant must show that there is a reasonable possibility that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial (italics in original); Hill, 474 U.S. @ 59. There is no evidence Moore wanted to go to trial in any state or federal record. As the dissent points out, now a lawyer representing a defendant must file any motion possible before entering a plea. The prosecution is unlikely to regard this tactic as an inducement to reduce a plea. In Moore, assuming the prosecution can retry the case after thirteen years, it will probably seek the death penalty. Deservedly so. The murder occurred in 1995, affirmed on appeal by the Oregon courts, and Moores petition for habeas corpus denied in a U.S. District Court. On appeal of that decision to the Ninth Circuit, the court heard argument in 2005 and filed its decision in 2008. Thirteen years between conviction and decision. A decision skewered by the dissent and a clear candidate for a rehearing by the full court. As of December, 2008 the Oregon Attorney General has taken no action.

Thursday, July 10, 2008

Sentencing: NInth Circuit Decision Reversed by Supreme Court: U.S. v. Rodriquez, 128 S.Ct. 1783 (2008)

U.S. Rodriguez, 128 S.Ct. 1783 (2008) Statutory interpretation is admittedly complex, particularly when federal and state sentences apply to an individual defendant. In U.S. v. Rodriquez, 464 F.3d 1072 (2002) the Ninth Circuit attempted to determine the appropriate sentence for a defendant with multiple convictions in state and federal court. Applying the Armed Criminal Career Act (ACCA) 18 U.S.C. 922, the court concluded that the sentence enhancement for Rodriguez should only be five years for a defendant convicted twice for burglary and three prior serious drug offenses. The decision cited with enthusiasm its prior case interpreting this statute, U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) as precedent for reducing the sentence. The Supreme Court granted review in U.S. v. Rodriquez, 128 S.Ct. 1783 and reversed the Ninth Circuit. Here is the Supreme Courts comment: The Ninth Circuits holding that the maximum term was five years contorts ACCAs plain terms . . .The Ninth Circuits interpretation is also inconsistent with the way in which the concept of the maximum term of imprisonment is customarily understood by participants in the criminal justice process." The balance of the Supreme Court decision repudiates entirely the rationale of the Ninth Circuit reducing the appropriate punishment. The Supreme Court not only reversed the Ninth Circuit decision, but the Justices clearly dismissed the ability of that court to understand criminal law as practiced in state and federal courts. In addition, the Supreme Court comments approach disbelief in the Ninth Circuit rationale for its decision. The effect of the Supreme Court decision in Rodriguez erases eight years of erroneous law enforced by the Ninth Circuit based on the Corona case (and its progeny) decided in the year 2000. All the cases cited in the Ninth Circuit decision in Rodriguez based upon the Corona Sanchez rule were obliterated. What is the cost of this to the California public?

Wednesday, July 2, 2008

Death Penalty Reversal: Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008)

Duncan v. Ornoski (Warden) 2008 WL 2498104 (9th Cir.) June 24, 2008 Within a few days after its indefensible opinion in Belmontes v. Ayers (529 F.3d 834 (9th Cir. 2008), a Ninth Circuit panel reversed the conviction of state court prisoner Henry Duncan on grounds his counsel was ineffective in defense of a murder charge. In 1984, Duncan was employed as a cashier at a restaurant where the victim worked as his supervisor. Employees found her body, repeatedly stabbed, the day after the murder, the room covered with blood, and money from receipts as well as the key to the safe missing. A broken knife handle lay next to her body and bloody shoe prints were imprinted on the floor. In addition to collecting blood samples, investigators removed fingerprints and palm prints from the scene but none matched Duncans prints at that time. Three months later a second entry and theft in the same room resulted in money stolen from the safe presumably opened by the key previously removed on the night of the murder. Police arrested and printed Duncan, and this time his fingerprints and palm prints matched the bloody prints taken at the murder scene. The bloody shoe prints also matched Duncans shoes. An investigator testified Duncans prints taken after the murder were unreadable, explaining the initial inability to match. The key to the safe was found in Duncans car. An expert prosecution witness testified that the blood samples found at the scene of the murder could not be matched because he had no sample from Duncan. When the prosecution sought a court order to extract a blood sample from Duncan, his counsel objected and neither side introduced evidence of blood sampling. With indisputable evidence establishing his clients presence at the scene of the murder, counsel unquestionably faced a challenge to avoid the conviction and the death penalty. The jury found Duncan guilty of murder-a killing in the course of a robbery-and voted the death penalty. On appeal, the California Supreme Court affirmed the convictiion; Peo. v. Duncan, 53 Cal.3d 955 (1991) At a subsequent post conviction hearing, counsel testified he wanted the absence of any evidence of blood comparison at the trial, fearing a positive result would doom his client who had admitted to him he was present in the room on the night of the murder. The risk was too great and counsel wanted the jury to hear no evidence of Duncans presence at the scene any more than they had already heard. Or, if the blood sample did not match, the jury would want to know who was in the room beside Duncan. No such evidence existed. The Ninth Circuit panel, of course, knew better. Failure to obtain a blood sample, even surreptitiously if possible, qualified counsel as ineffective l. Yet knowing his client had already told him of his presence at the murder scene, indicating culpability, the decision not to secure a blood sample is a risk a lawyer must take-other than in the Ninth Circuit. At the post conviction hearing, counsel testified he attempted to establish a third person had committed the murder but, according to the Ninth Circuit panel, he never presented any physical evidence tying anyone else to the scene. What physical evidence could counsel present? The evidence unequivocally established Duncans fingerprints, palm prints, and bloody shoe print were found in the money room. Duncan worked on the premises, knew the location of money and returned to the restaurant a second time to steal more money with the key to the safe found in his car-a separate crime to which he pled guilty. In fact, said the California Supreme Court in 1991, All of the physical evidence that was presented at trial tied Duncan to the crime scene; Peo. v. Duncan, supra. Perhaps if Duncan had testified-the panel says nothing about that fact but the California Supreme Court wrote in its decision that Duncan did not testify-he would have identified the other party. For counsel, the only basis to escape culpability lay in establishing Duncan did not personally kill the victim, or acted as an accessory. Duncan produced no such evidence because none existed. The Ninth Circuit panel only repeats the failure of counsel to obtain a blood sample ad nauseam and criticizes this strategic omission. The Ninth Circuit again reweighed the evidence, speculated on the outcome and chastised counsel who faced overwhelming evidence of guilt and presented no blood sample somehow mitigating the sentence. The murder occurred in 1984. In 2008 the prosecution must retry the sentencing phase of the case unless the full Ninth Circuit panel reverses this panel decision. The Supreme Court denied cert.; 129 S.Ct. 1614 (2008) The Ninth Circuit panel did not close the door on other claims despite affirming the conviction on the merits: We need not reach Duncans remaining claims as they pertain only to the penalty phase and our decision . . . vacating Duncans sentence renders those claims moot. In other words, this decision is not the end of the case.

Tuesday, July 1, 2008

Death Penalty: Ninth Circuit Reverses (Again): Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2009)

Belmontes v. Ayers (Warden) 529 F.3d 834 (9th Cir. 2008) June 16, 2008 Rehearing denied: 551 F.3d 864 (9th Cir. 2008) Ignoring the trial record, indifferent to its two previous reversals by the Supreme Court, and impervious to the emotional drain on family and friends of the victim caused by her vicious murder committed by a stranger (Belmontes), a Ninth Circuit panel (2-1) reversed the death penalty of this state court prisoner for the third time. The dissent writes a scathing decision excoriating the majority for rewriting the trial record. The majority decision begins by conceding the California Supreme Court originally affirmed the conviction and sentence of Belmontes with this language: The properly admitted evidence in this case-in particular the circumstances of the crime-was simply overwhelming. All California courts subsequently denied post conviction claims, and the federal district court denied Belmontes petition for habeas corpus. The Ninth Circuit panel in Belmontes listed all its previous decisions reversed in the same case by the Supreme Court but found one issue never litigated: defense counsel was ineffective in presenting mitigating evidence during the death penalty phase. The panel, reminding the reader its decision was unaffected by Congressional enactment of the Anti Terrorism and Death Penalty Act of 1996, a statute designed to prevent the Ninth Circuit from writing decisions similar to this third Belmontes decision, specifically mandates federal courts to afford deference to state court decisions. Not bound by this statute for Belmontes conviction in 1979, the panel ignored the California Supreme Court and the federal district court. The Supreme Court never addressed the ineffective counsel argument in its second reversal of Belmontes and sent the case back to the Ninth Circuit for further proceedings consistent with this opinion. Here is the Ninth Circuit panels interpretation of that language: The [Supreme] Court remanded, [returned] leaving us the task of resolving Belmontes remaining penalty phase claims, primarily ineffective assistance of counsel. The Supreme Court said nothing of the sort. The two judge Ninth Circuit panel majority criticized defense counsel for insufficient preparation of mitigating evidence in an attempt to humanize Belmontes, a challenging task for someone who burglarized a home and killed a defenseless woman by smashing her head with a dumbell in excess of twenty times. In fact, counsel presented several witnesses who testified to Belmontes childhood, his religious conversion in jail and an expert witness who testified Belmontes suffered from rheumatic fever. Although the Ninth Circuit panel repeatedly asserted rheumatic fever was a significant factor never developed to the jury, the expert witness diagnosed the condition as pretty mild. The panel also recited Belmontes drug history although neither the defendant nor any witness ever testified to his use of drugs on the night of the murder. Counsel for Belmontes was compelled to make a strategic choice. Presenting character evidence from other witnesses of his good behavior and non violence in mitigation of the death penalty opened up the prosecution to introduce evidence of a prior murder committed by Belmontes. Due to difficulties in securing testimony for that case, the prosecution accepted a plea to accessory after the fact. But the prosecution had other witnesses prepared to testify that Belmontes subsequently confessed to the murder. This devastating evidence was withheld from the jury based on counsels strategy not to introduce character evidence which the prosecution was prepared to rebut. Defense counsel explained this strategy at a subsequent hearing in federal court. The majority criticizes failure of counsel to produce Belmontes school records. To prove what? that his school record as a child was relevant? And this: another document in the California Youth Authority file suggested that Belmontes might (emphasis added) be suffering from depression. Based on that possibility, here is the next sentence from the court: Despite [defense counsels] awareness of . . . the possibility (emphasis added) that Belmontes suffered from depression . . . Jurors are not impressed by evidence of possible depression. In Belmontes penalty phase testimony, he second guessed the jury verdict, showed little remorse, and could not articulate in any concrete way in which he would contribute to society if sentenced to life in prison. He did not explain any of the mitigation evidence or offer the jury any reasons why the jury should spare his life. According to the panel majority, this was counsels fault. In a footnote to the text, here is what the panel majority said after citing another death penalty case previously decided by the Ninth Circuit: ...Belmontes crime only involved one victim (emphasis added) who was killed because she surprised Belmontes and his confederates during a robbery. A robbery initiated by a burglary, planned by Belmontes and his cohorts, using false pretenses to gain entry, followed by a brutal and horrifying crime. If Belmontes was surprised by the presence of an occupant of the residence, all he had to do was depart.  

Friday, June 27, 2008

Due Process: Ninth Circuit Retrys the Case (again): U.S. v. Jernigan, 492 F.3d 1050 (9th Cir. 2008)

U.S.A. v. JERNIGAN, 492 F.3d 1050 (9th Cir. 2007) Jernigan is only another of several Ninth Circuit cases in which the court abandons its role as a reviewing court and retrys the case. In Jernigan, the defendant was convicted of bank robbery based on the testimony of five witnesses and retrieval of images from a video surveillance camera. Several months later, while in custody, Jernigan learned that another woman had robbed several banks in the same area, including the one robbed by Jernigan. In a motion for new trial, she argued the government had wrongfully withheld evidence that a woman similar in appearance to her had committed robberies while she herself was in custody, and her conviction should be reversed for failure of the government to disclose this evidence. The trial judge, who also conducted an evidentiary hearing on the motion, concluded no similarity existed between the two women. The Ninth Circuit panel who originally heard Jernigans appeal from this decision affirmed the conviction, quoting extensively from the trial record and the comments of the judge who specifically rejected the evidence of similarity; U.S.A. v. Jernigan, 451 F.3d 1027 (9th Cir. 2006). The Ninth Circuit reheard the case as a full panel (en banc) and reversed the conviction, never referring to the trial judges comments who presided at the trial and the motions, unambiguously commenting on the different appearances of the two women. Nor did the Ninth Circuit consider the decision of its earlier panel describing the accuracy of the identification. And, the defense attorney at trial never argued that the two women looked alike, only that his client was not the robber. A dissenting judge issued a stinging rebuke to the majority for reweighing the evidence. More specifically, he reproached the majority for completely ignoring the findings of the trial judge who presided at trial and at the motion for new trial. As noted in other contexts, the Ninth Circuit has repeatedly used this tactic of ignoring the findings of the trial judge who heard all the witnesses and examined the evidence. The Ninth Circuit simply refuses to act as a reviewing court without any deference to trial judges who observe the witnesses and supervise the evidence. Reversed on the ground of Due Process As of June, 2008 there is no further report of this case, i.e., whether the government retried Jernigan.

Monday, June 9, 2008

Due Process: Retrial in the Ninth Circuit: U.S. v. Hinkson, 526 F.3d 1262 (9th Cir. 2008). (En banc Court Reverses, U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009); See, January 10, 2010 Entry

Retrial required by the Ninth Circuit: U.S. v. Hinkson, 526 F.3d 1262 (9th Cir. 2008). En banc court reverses three judge panel and affirms conviction; U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) Some of the judges on the Ninth Circuit regard their role as a super trial court, reweighing the evidence, speculating on the potential of a different outcome at the trial, and ignoring precedent. Only an insatiable quest for error, unburdened by an inability of the Supreme Court to review all their innumerable mistakes, enables these judges to repeatedly find error no one else perceives. Here is the dissenting judges opening remarks commenting on the 2-1 judge majority opinion reversing the conviction in U.S. v. Hinkson, 2008 WL 2221009 (9th Cir.). In granting a new trial, the majority has assumed the role of super trial court rather than a reviewing court. The bottom line is that nowhere does the majority give any deference to the district courts detailed findings. Instead, in an effort to reconstruct the trial from the bottom up and in hindsight, the majority goes to great length to marshal the evidence, vigorously arguing the facts and the inferences from those facts and forgetting under the abuse of discretion standard, we cannot simply substitute our judgment for the district court. To what manipulation of the evidence is the dissenting judge referencing? Defendant Hinkson unambiguously hated an investigator, a prosecutor and a trial judge who had previously conducted an investigation into his business relationships in an unrelated trial. Hinkson repeatedly urged one Elven Joe Swisher to murder those three people and eventually Swisher reported these threats to the government. As a witness at the trial, Swisher testified to the threats and his relationship with Hinkson, eventually terminating unpleasantly. On the witness stand, Swisher wore a small lapel pin replicating a military Purple Heart medal as evidence of his military experience and honors in the Korean war. Eventually the evidence disclosed he had exaggerated his service record. The issue of late disclosure of Swishers false military records at trial led to an investigation by the defense and an extensive discussion with the trial judge. The misrepresentations were the subject of considerable disagreement among the parties but no one questioned Swishers military record in general. The prosecution conceded Swishers distortion of his record but the defense made only a tepid argument in its attempt to impeach him. The prosecutor warned defense counsel his attempt at impeachment would meet with a significant rebuttal. The evidence established that Swisher owned numerous weapons and, coupled with his Korean war experience, qualified him as a candidate of murder for hire. Although Swisher lied about his military record, Hinkson nevertheless believed him and his expertise in firearms. The prosecutor called numerous other witnesses and other evidence corroborated Swisher. The jury convicted Hinkson. After the trial court denied a motion for new trial, Hinkson appealed. The Ninth Circuit panel majority reversed and ordered a new trial based on evidence newly discovered by the defense after the trial confirming Swishers misstatement of his combat record. The panel majority consumes endless pages citing the testimony and arguments of counsel during the trial. The result is incomprehensible, the panel majority focusing exclusively on the Purple Heart pin and the fabrication of military records. As the dissent points out, wrongfully wearing a lapel pin replicating a Purple Heart medal hardly disqualifies a witness. Falsifying a personnel record is inexcusable but a trial does not hinge on collateral damage. The principal impact of evidence at trial is Swishers detailed testimony of threats corroborated by other witnesses. The false recitation of military history, believed by Hinkson, convinced him that Swisher and his war experience in Korea qualified him as an assassin. Obviously Swisher was attempting to receive additional governmental benefits and falsified his military records long before Hinkson solicited him for murder. The trial judge made an extensive examination of the military records and, aware of the falsity, denied the motion for a new trial on grounds this extraneous evidence was irrelevant as to Hinksons state of mind. The prosecution never asked Swisher any questions about his Purple Heart or other medals he was awarded (wrongfully) and focused on the Hinkson threats. The decision granting Hinkson a new trial is another example of appellate judges inexperienced in jury trials who heard no testimony, observed no witness demeanor, and ignored the decision of the trial judge that no error occurred. As the dissenting judge wrote, the majority are super trial judges, an all too familiar pattern of the Ninth Circuit. On October 20, 2008 the Ninth Circuit ordered this case reheard en banc. The en banc court reversed the 2-1 majority of the three judge panel and cited the appropriate rules for appellate courts in reviewing appeals from trial courts; U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009). See, further discussion in the January 6 entry.

Sunday, May 25, 2008

Ineffective Counsel: Ninth Circuit Reverses 23 Year Old Case/Ineffective Counsel: Corell v. Ryan, 539 F.3d 938 (9th Cir. 2008)

Correll v. Ryan [Warden] 539 F.3d 938 (9th Cir. 2008) Ineffective Assistance of Counsel Congress, understandably frustrated with U.S. circuit courts of appeal in general, and the Ninth Circuit in particular, enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996 to restrict federal habeas corpus review of state court convictions. No case more dramatically illustrates the overwhelming need for this statute than the Ninth Circuit decision in Correll v. Ryan (Warden), decided May 15, 2008. Because this case is twenty three years old, the Ninth Circuit escaped the restrictions of AEDPA and performed a de novo review under the old more liberal law. The facts are horrendous but the reader would never know about the vicious murder of four victims by reading the author of the majority opinion, writing perfunctorily and without any description of the facts, that Correll was convicted of three counts of first degree murder, attempted first degree murder, four counts of kidnapping, armed robbery and first degree burglary. The dissent does explain: Correl and a co suspect entered one of the victims house demanding money. Correll secured the victim and his girl friend with duct tape, and, when two other friends of the victim arrived, he taped them also. Correll and his companion raided the house for money and valuables. They forced three of the victims at gunpoint into a car and drove to a deserted area. Compelling them all to lie on the ground, Correl shot one in the head, who miraculously survived, and helped his companion execute the other two victims. Police found the other victim in the house dead by strangulation. The sole defense at the trial was misidentification of Correll. The jury convicted Correl, and, during the penalty phase, the prosecution presented five aggravating factors which, under Arizona law, are conditions for imposing the death penalty. Counsel for Correll presented substantial mitigating evidence, attempting to paint his client as less culpable than the other killer. Counsel argued for mitigation on grounds Correll was under the influence of drugs and had a troubled family history but the judge sentenced Correl to death. The Arizona Supreme Court affirmed the conviction on appeal. Correll filed post conviction proceedings in the state court alleging his counsel had been ineffective in representing him in the penalty phase by failing to present psychological evidence. After the court held an evidentiary hearing, the judge denied the petition, commenting . . .the Court specifically recalls the trial work of defense counsel was precise, careful and competent, and manifested strategic and tactical judgment of the same high quality. Turning to the federal court, Correll filed a petition for habeas corpus. The district court denied the petition but on appeal the Ninth Circuit ordered an evidentiary hearing on grounds Correll had not received a full evidentiary hearing in state court. On remand, the district court held a nine day evidentiary hearing and concluded counsel had been deficient in some areas but insufficient to prejudice the petitioner. The court made specific findings of fact in a 109 page opinion. On appeal from this decision, the Ninth Circuit majority (having rejected the Arizona Supreme Court decision, the post conviction hearing in state court and the federal district court judge), found counsel for Correll ineffective. Their decision drew six angry dissents. According to the majority, counsel did not present mitigating evidence of brain damage incurred when Correll was seven years old. The psychiatrist testified Correll suffered no brain injury and was a fully functioning adult. The majority criticized counsels failure to present psychological evidence although this strategy would have opened the door for the prosecution to offer damaging evidence of Corrells violent history. Correll had a previous conviction of armed robbery, had been confined in a mental hospital for almost his entire adult life where he had repeatedly escaped, raped an attendant and engaged in disorderly conduct. He had never worked, assaulted his sister, and spent his time injecting narcotics. This evidence did not suggest mitigation as a sensible strategy. The alternative to escaping the death penalty is evidence of lesser culpability or other factors to cast doubt on the verdict. This strategy requires counsel to impute more responsibility on a co suspect, offer evidence of intoxication at the time of the crime, or present other witnesses who would offer character evidence. Casting doubt on the conviction, as distinct from attempts to dissuade the trier of fact imposing the death penalty for reasons of mental instability, age, lack of premeditation, is regarded as an effective alternative according to studies on this subject. But Correll had argued he was not responsible for the crimes, i.e., he was innocent. Forced by the jury verdict to disregard this strategy, counsel confronted a mountain of rebuttal evidence in the file of the prosecution if he introduced mitigating evidence. Confronted with devastating rebuttal evidence if he offered evidence of mitigation, and possessed of no psychiatric evidence from testimony by doctors, counsel lacked the resources to avoid the death penalty. More disturbing is the majority opinion disregarding the facts. According to the majority, counsel failed to explain mitigation evidence of drug use, brain damage, family history or medical record. In fact, there is no evidence Correll was under the influence of drugs at the time of the murders, no evidence of brain damage and the court knew of attempts by his family to assist him in his conduct. The pre sentence report also provided additional information to the trial judge. The majority also contend counsel did not seek testimony from a chaplain at prison. As the dissent points out, the chaplain refused to testify. Nor does the court mention that counsel interviewed thirty to forty witnesses, none of whom would testify favorably. There is no expert testimony of mental imbalance. This distortion of the facts identified by the dissents is inexcusable, but not the first time the Ninth Circuit has reweighed or ignored the evidence. Unless reversed by the Supreme Court, the Ninth Circuit regularly stifles imposition of the death penalty and Corell is a prime example of an appellate court reweighing the evidence and dismissing state and district court findings. Appellate courts were mandated to defer to factual finding supported by the evidence prior to enactment of AEDPA. In 109 pages the district court outlined its findings, essentially ignored by the Ninth Circuit. The Ninth Circuit has embraced the Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984) enabling an appellate court to conclude counsel was ineffective during trial or sentencing in capital cases. The majority in Correll, finding reasons not to impose the death penalty on grounds counsel was ineffective, creates a insurmountable dilemma. If defense counsel offers mitigation evidence, the prosecution introduces Corrells previous conviction for armed robbery, confinement and escape in a mental facility, and molestation of his sister. If counsel does not submit mitigation evidence, the Ninth Circuit criticizes him for not doing so. The Strickland test requires reversal on appeal only if counsel is ineffective to a point the defendant was prejudiced. This test is quintessentially fact specific and a court can always cite Strickland as precedent. But the court of appeal did not hear the evidence, was not at the trial or sentencing, did not participate in the two evidentiary hearings and misstates the evidence. From a cold record the majority undermines the death penalty. The Supreme Court has cautioned Courts of Appeal from second guessing trial counsel and their sentencing strategy. The Ninth Circuit majority in Correll has done just that in case now twenty three years old. The majority opinion duplicates what the dissenting judges said in Gentry v. Roe, 320 F.3d 891 (9th Cir. 2002) in 2002: This case is part of a developing body of circuit law substituting our judgment on defense tactics and presentation for the judgment of defense counsel and state courts. More often this occurs in death penalty cases, but the trend is seeping beyond them to more routine cases . . . The last thing criminal defendants and the public need is a Ninth Circuit form book of approved argument and strategies, yet that what were giving them. Were telling them in great detail how to investigate their cases and forcing them down rabbit tracks that divert their time from better applications, that they have to produce psychiatric evidence though often it's a bad idea, . . . Now they apparently have to make, and refrain from making arguments . . . regardless of what they think will most likely persuade the jury to consider seriously whether there is a reasonable doubt. The Supreme Court reversed the Ninth Circuit (and the majority opinion in Roe v. Gentry) in Yarborough v. Gentry, 320 U.S. 1 (2003).

Thursday, May 22, 2008

First Amendment: Latin Cross Violates Establishment Clause: Buono v. Kempthorn, 527 F.3d 758 (9th Cir. 2008)

Buono v. Kempthorne (Secretary of the Interior) 527 F.3d 758 (9th Cir. 2008) Cert Granted. Seventy five years ago, the Veterans of Foreign Wars erected atop Sunrise Rock in the Mojave National Preserve a memorial to veterans who died in World War I. The Memorial took the form of a cross, nearby stood a wooden sign stating, The Cross, Erected in Memory of the Dead of All Wars and Erected 1934 by Members of Veterans of Foreign Wars. The sign has since disappeared, and the cross has been replaced several times, most recently in 1998. Each incarnation of the memorial was created and installed by private citizens; there is no indication in the record that citizens ever received permission from the National Park Service; Buono v. Kempthorne; OScannlain, dissenting from denial of hearing en banc; 2008 WL 2939257 (9th Cir.) The facts of Buono are essentially undisputed, although their interpretation is not, as evidenced by litigation between the parties spanning six years. When the Ninth Circuit issued its original injunction in 2004 commanding removal of the cross, Congress replied by transferring the property to a private source, thereby escaping any Constitutional issue. According to the Ninth Circuit majority in Buono v. Kempthorne, decided in May, 2008, this Congressional act amounted to a sham transaction. The court held the Act violated the First Amendment Establishment Clause and affirmed its original injunction. The memorial has stood for seventy five years to honor those who died in the service of their country. These men and women who traveled abroad and left their friends and family to fight on foreign soil are entitled to a symbol of their commitment. No one has been compelled to join any religious group, no one terrorized, no harm to anyone. In a disservice to the dead and simultaneously interring American history, the Ninth Circuit deserves Congressional and national repudiation previously voiced when the court precluded the right of school children to include under God in the Pledge of Allegiance. The quotation above from the dissenting opinion in Buono (joined by four other judges) signals determination by a majority of the Ninth Circuit judges to eradicate religion from the public square no matter how tenuous the evidence and regardless of the public weal. As noted by the dissenting judges, the memorial has existed without a single complaint until 2002 when the ACLU elected to intervene on grounds the Latin Cross violated the Establishment Clause of the First Amendment. An unadorned cross in the middle of the desert hardly "establishes" any religion and its compulsory removal on gounds it "offends" somone is inconceivable. The First Amendment has undergone significant revision in the last quarter century as federal courts in general, and the Supreme Court in particular, have attempted to reconcile the religious origins of the United States in 1787 with the significant public interest in religion throughout American history. The original purpose of the Establishment Clause prohibited a federally supported national church experienced by colonists under Henry VIII and Elizabeth. English history is replete with evidence of tormenting, terrorizing and killing Catholics during the reign of these two monarchs, and our memory of the Puritans who sought escape from royal tyranny is implanted in the roots of American history. In Buono the Ninth Circuit majority again continued their attempt to extirpate any trace of religion in the public square (or in this case, the desert) by compelling removal of a poignant memorial of men and woman who died for their country. Somehow a simple cross memorializing the death of veterans is the equivalent of establishing a religion. The dissent is a scathing indictment of the majority decision who worry that an observer would believe-or at least suspect-[italics in original] that the cross rests on public land . . . Apparently in three quarters of a century no one worried about it. The Ninth Circuit not only ignores Congressional approval transferring the land to a private party but contradicts this Supreme Court quotation: There is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference; Corp. of the Presiding Bishop of the Church of Jesus Christ of LatterDay Saints v. Amos, 483 U.S., 327, 334 (1987). Undoubtedly the government will seek review in the Supreme Court and the Ninth Circuit will add another reversal to their voluminous record. The majority in Buono cited not a single Supreme Court case in their decision. This case is not legal analysis. This is policy making. *** On the same day the Supreme Court reversed the Ninth Circuit in U.S. v. Ressam, 2008 WL 2028505 (See, Blog, May 20, 2008), the Justices also reversed U.S. Rodriguez, 2008 WL 2028149. Although the Supreme Court decision in Rodriguez is a technical review of sentencing under the Armed Career Criminal Act, 28 U.S.C.A. 924 (e), the government argued the defendants 5 year sentence imposed by the district court should have been 10 years. The Ninth Circuit, opting for leniency, affirmed the 5 year sentence for the defendant previously convicted of three felonies and arrested in possession of a firearm.

Tuesday, May 20, 2008

Statutory Interpretation; Supreme Court Reverses Ninth Circuit Terrorist Case: U.S. v. Ressam, 128 S.Ct. 1858 (2008)

U.S. v. Ressam, 128 S.Ct. 1858 (2009) Remanded to Ninth Circuit; 538 F. 3d 1166 (9th Cir. 2009) Ahmed Ressam attempted to enter the United States from Canada in his vehicle but gave false information of his identity to an inspector. At a secondary location, customs agents discovered explosives in his trunk destined for a terrorist attack in California. After his arrest, the Attorney General charged Ressam with feloniously making a false statement to customs officials in violation of 18 U.S.C.A. 1001, and carrying explosives during the commission of a felony in violation of U.S.C.A. 844 (h) (2). Convicted of both crimes, the defendant appealed to the Ninth Circuit. The Ninth Circuit panel majority (2-1) of judges interpreted the statutory language during the commission of a felony to require a relationship between the underlying felony (lying to the customs officer) and the act of carrying explosives. Finding none, the court reversed the conviction on that charge (count). Not only did the Ninth Circuit ignore decisions of two other Circuit Courts of Appeal on the same issue, it relied on one of its own vintage cases as precedent although decided prior to Congressional amendment of U.S.C.A. 844. Because of the three judge panel split decision, the court offered the entire Ninth Circuit panel of judges (en banc) an opportunity to rehear the case. Despite the obvious need to correct the original panel decision, a majority of the court declined a rehearing over the objection of six judges. Here is an excerpt from the dissent, minus a chilling description of the evidence of potential death to untold number of California citizens had Ressam succeeded in his plans. I dissent from the denial of rehearing en banc because we have not only usurped the congressional function, but have also created a split of authority with every other United States Court of Appeals that has addressed this question. The Supreme Court granted certiorari. In a brief 8-1 opinion the Court rejected the Ninth Circuit reasoning, peremptorily dismissing the Ninth Circuit decision. There is no need to consult dictionary definitions of the word 'during in order to arrive at the conclusion that [Ressam] engaged in the precise conduct described in section 844(h) (2). The termduring denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because [Ressams] carrying of the explosives was contemporaneous with his violation of section 1001, he carried them during that violation. The statutory language was so obviously unambiguous that two of the Justices concurred in a single sentence, impliedly dismissing the Ninth Circuit decision without the necessity of even writing a decision.

Friday, May 16, 2008

Evidence: Re weighing the Evidence: Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008); Fourth Amendment Liability: Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008); Immigration (Asylum): Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008); Deported Five

All this in two days of Ninth Circuit opinions: Re weighing the evidence: Brown v. Farwell (Warden), 525 F.3d 787 (9th Cir.2008); Plaintiff arrested, and accidentally shot the plaintifff exposes defendant officer and city to liability; Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008); Immigration judge erred in asylum application; Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008); Illegal alien stays in US five years after ordered deported; Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008). Brown v. Farwell: Re weighing the Evidence. Again. Prosecuted under a Nevada statute for sexual assault, the jury convicted defendant Troy Brown. On his appeal from the conviction, the Nevada Supreme Court affirmed; Brown v. State, 934 P.2d 235 (Nev.). Brown subsequently filed a habeas corpus petition in Nevada state court seeking to vacate the verdict and sentence. The state court denied his petition. Defendant sought habeas corpus from the U.S. District Court. Granted. During the District Court hearing before a single federal judge, the defendant supplemented the trial record by offering evidence that the DNA test implicating him at trial had proved inaccurate and misleading. In ruling on the petition, the District Court judge, never having seen the witnesses or presided at the trial, assessed the DNA evidence in addition to testimony and other evidence introduced at trial, and granted the writ of habeas corpus. The State appealed to the Ninth Circuit. The Ninth Circuit majority (2-1) panel summarized the conflicting evidence introduced in the trial court. The panel ignored the role of jurors who had heard the evidence and convicted the defendant at trial in spite of inconsistencies in the testimony of witnesses, ultimately resolving the conflict in favor of the prosecution. As conceded by the Ninth Circuit panel majority, Congress had stripped federal appellate courts of jurisdiction to hear the habeas corpus petition unless . . . the claim resulted in a decision [by a state court] contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States; 28 U.S. 2254 (d). To meet that test, the Ninth Circuit panel unearthed its favorite Supreme Court case for reversing state courts when it can find no other reason; Jackson v. Virginia, 443 U.S. 307 (1979). The Supreme Court in Jackson held a conviction in state court must be affirmed if after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Nevada Supreme Court had held the standard of review for sufficiency of the evidence on appeal is whether the jury, acting reasonably, could have been convinced of the defendants guilt beyond a reasonable doubt." The Ninth Circuit panel majority in Brown concluded that the Nevada standard only requires a reasonable jury-not a rational one. This type of linguistic manipulation is ludicrous. How do you distinguish between a reasonable jury and a rational jury? The Ninth Circuit majority panel, citing another of their state court reversals employing comparable sophistry in Chen v. Mukasey, 373 F.3d 978 (9th Cir. 2004 (en banc), criticized the Nevada Supreme Court in Brown v. Farwell for failure to comply with the rational rule of Jackson. The Ninth Circuit majority panel launched into a DNA lecture defying comprehension but concludes that the results of the second DNA test might have been applicable to defendants brothers instead of Brown. Two of the brothers lived out of state and the third brother testified to an air tight alibi. The majority panel, jettisoning the Supreme Court rule to [view] the evidence in the light most favorable to the prosecution, reviews all the conflicting evidence favorable to the defendant and affirms the district court-all on a cold record without the benefit of hearing or seeing any of the witnesses. Brown does not allege a single legal error in the trial other than insufficiency of the evidence. No questionable voir dire of jurors; no prosecutorial misconduct; no erroneous jury instructions. Only a rhetorical distinction no jury would make between the words rational and reasonable. The Brown case, the Chen case-and the two cases it cites-also reversing a state court, clearly illustrate the practice of the Ninth Circuit reweighing the evidence. The jury resolved the testimonial conflict between the victim and the defendant, and the verdict did not rest entirely on DNA evidence. In fact, the rebuttal of the DNA trial evidence occurred in a supplemental hearing before a federal court judge without any jury and conducted subsequent to an evidentiary hearing denying habeas relief in state court. The dissenting judge (2-1) confirms this summary. The Supreme Court granted cert: 129 S.Ct. 1038 Torres v. City of Madera: Ordinary Negligence Becomes a Constitutional Case Officers responding to a complaint of loud music arrested Torres, handcuffed him and placed him in a patrol car. When he started to engage in disruptive conduct, the police officer decided to taser him. She accidentally unholstered her firearm instead of the taser and fatally shot Torres. His estate filed civil rights litigation asserting a Fourth Amendment violation, contending Torres was illegally seized, the ground necessary for litigation. The Ninth Circuit panel concluded Torres was undergoing a continuing seizure, a novel doctrine of their own invention, and qualified for Fourth Amendment protection. The parties in the trial record did not explore the question of whether the seizure was reasonable as required by the Fourth Amendment, and the panel remanded to the trial court (which had ruled in favor of the City on a summary judgment motion) to expand the record. The judicial waste of time in this case is absurd. This unfortunate accident is a simple case of negligence, if anything, and should have remained in the state court but for the federal claims or diversity of citizenship. Fakhry v. Mukasey: Overstay Your Visa for Three Years? Apply for Asylum Immigration law is a labyrinth of statutes and regulations governing deportation, asylum and the Convention Against Torture. The Department of Homeland Security immigration judges (IJ)who hold hearings on these topics are an agency of the federal government, and not an Article III court concerned with litigation. Despite Congressional attempts to reign in federal court review of agency decisions, the Ninth Circuit repeatedly applies litigation law to agency decisions, including Constitutional provisions of due process and ineffective counsel. The Ninth Circuit does not understand the principle role of the immigration judge: to decide credibility, not engage in judicial abstraction and rhetorical distinctions without a difference. IJs obviously must apply relevant statutes or immigration regulations, but with a practical eye, not a quest for error. For example, Fakhery came into the United States in 1999 on a temporary visa. Three years later he applied for asylum but his petition was denied by the IJ on the ground the statute limited these applications to one year from the date of entry. An exception exists to the statute (resembling a statute of limitations in litigation) when changed circumstances exist in the country of origin. Setting aside a recitation of all the facts in the case, the evidence established his wife never left the country of origin and Fakhry returned there on at least one occasion to move them to another city. After engaging in another mind bending analysis of Fakherys subjective intent, applying legal procedural rules applicable in litigation, i.e., presumptions and burden of proof, the panel interprets the statute to conclude there is no reason why he should not have another hearing because the IJ interpreted the statute differently. After living in the United States on an expired visa Fakhery applies for asylum despite having returned to his country where his wife continued to live. Chen v. Mukasey: Live in the U.S. Five Years After Ordered Deported Petitioner (Chen) entered the U.S. in 1999, and was arrested for presenting a false passport, and released on $7500.00 bond. An exclusion hearing was held, she failed to appear and was ordered removed in absentia. An arrest warrant was issued for her removal. She subsequently moved to reopen the proceedings. The petition was ruled untimely (apparently no one thought about arresting her on the warrant). In 2001 she married and had a child in 2002. She filed another motion to reopen her case in 2004. Denied. In 2005 she had a second child, and filed another motion for asylum alleging changed personal circumstances, i.e. had occurred endangering her return to China based on its one child sterilization policy. The Ninth Circuit engaged in an interpretation of two statutes relevant to her petition, possibly in conflict, and decided the petitioner is ineligible for asylum. This summary of the proceedings is astonishing. An illegal alien is arrested for presenting a forged passport; released on nominal bail; fails to appear at her hearing; an arrest arrant is issued; she remains in the U.S. and has a child; files another petition for asylum; denied; has a second child and files for again for asylum; denied by the Ninth Circuit in 2008. From 1999 to 2008 petitioner lived in the U.S. despite a deportation order and an arrest warrant. Chen, ignoring the order and the warrant, continued her residence in this country, bore two children and now seeks asylum (after two denials) on grounds of Chinese policy. And the arrest warrant is presumably outstanding.

Saturday, May 3, 2008

Sentencing: Ninth Circuit Denies Sentence Enhancement for Double Murder, U.S.A v. Eugene Rising-Sun, 522 F.3d 989 (9th Cir. 2008)

U.S.A. v. Eugene Raymond Rising-Sun 522 F.3d 989 (9th Cir 2008) In a remote location several miles from a tiny Montana town on the Crow reservation, officers found two dead women lying in a ditch. An autopsy revealed each had been struck in the head by a blunt instrument. The murder investigation focused on the defendant Rising Sun, and the FBI discovered physical evidence linking him to the crime. Investigators interviewed the defendants brother who said they had driven the two woman to the location on the pretense of partying together. Stopping the car during the drive, the two women and the defendant exited. The brother heard defendant accuse one of the women as a narc. He heard a woman scream, followed by a loud thump, and saw the defendant smack her. The defendant dragged her body into a ditch, chased the other woman and repeatedly hit her with an object obtained from the trunk of the vehicle. Defendant pled guilty to two consecutive life sentences supplemented by sentencing enhancements for killing the women who were vulnerable to attack in a remote location. Sentencing also included an enhancement for obstruction of justice based on the testimony of other witnesses who had seen defendant destroy evidence linking him to the crime. The trial court also imposed an additional sentence of Extreme Conduct and Criminal purpose. Defendant appealed the enhancements to his sentence, alleging the trial court erred in sentencing pursuant to federal sentencing guidelines; U.S.S.G. 3A.1 (b) (1). This section enhances a sentence if the defendant knew or should have known that the victim of the offense was . . . one who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to criminal conduct. The Rising Sun court cited Ninth Circuit precedent in U.S. v. Peters, 962 F.2d 1410 (9th Cir.1992), that the language otherwise particularly susceptible to criminal conduct requires the sentencing court to consider the victims personal traits of age, physical or mental condition in addition to the circumstances surrounding the criminal act; This interpretation requires the court to consider factors including physical traits to establish a victim particularly susceptible to crime. Yet the Peters court upheld the enhanced sentence without any evidence of the personal traits of the victim of mail fraud. In U.S. Castellonos, 81 F.3d 108 (9th Cir.1996), also cited by the Ninth Circuit, the panel in Rising Sun wrote: It is unclear precisely why the [Sentencing] Commission chose to employ the separate concepts of unusually vulnerable and particularly susceptible except to suggest that characteristics of age, physical condition or mental condition may render a victim worthy of the special protection of this section whereas other circumstances might make the victim subject to such protection depending upon the nature of the particular criminal conduct. Citing Peters and Castellanos, both cases involving mail fraud- not murder-the Rising Sun court found no evidence of the victims personal characteristics that warranted enhanced sentencing. The court distinguished another case, U.S. v. Weischedel, 201 F.3d 1250 (9th Cir. 2000) in which the defendants murdered a car salesman who had driven them to a remote location but, according to the Ninth Circuit, the victims job required him to drive a car remotely thereby enabling the putative buyers to kill him. The prosecution offered no evidence of the salesmans personal traits. Commentary: The court in Weischedel wrote nothing about physical characteristics of the victim, only evidence that the victims job required him driving to a remote area. . . . [T] circumstances that made the victim particularly susceptible to the criminal conduct resulted from the requirements of his job. That the two women killed by defendant Rising Sun voluntarily accompanied him to a remote area somehow distinguishes this case from murder of the car salesman on his job suffering the same fate is ludicrous. In Rising Sun, the evidence clearly established the killing occurred in a remote location. The victims were lured by an invitation to party, and during their drive the defendant accused one of the women as a narc. This evidence clearly established premeditation and an intent to kill the women by selecting a location rendering the women vulnerable to attack and unable to escape, seek assistance, or defend themselves. The sentencing judge used that explanation to impose the enhanced sentence. U.S.S.G. 3A (b) (1) permits enhanced sentencing under two conditions; First, the vulnerability of the victim based on age, mental or physical condition. These factors relate directly to the status of the victim, i.e., young, elderly, mentally impaired or physically disabled. The second statutory condition enhancing sentence provides an alternative to vulnerability of a victim and reads, or [a victim] otherwise particularly susceptible to criminal conduct. The use of the conjunction or in the statute clearly distinguishes a vulnerable victim from one particularly susceptible to criminal conduct, and the latter is devoid of any reference to personal traits. Otherwise the statute would use the word and to couple the two categories. Under the Ninth Circuit interpretation the second alternative of susceptibility to criminal conduct is cumulative of the term vulnerable. In fact, the two descriptions of victims are separate sections, one focusing on status, the other on conduct. The correct interpretation of the sentencing guidelines requires the court to consider factors other than physical traits to establish a victim particularly susceptible to criminal conduct. The Peters court upheld the enhanced sentence without any evidence of the personal traits of the victim of mail fraud. Castellanos is an equally inapplicable case of fraud perpetrated against a Spanish speaking community. In Castellanos, the Ninth Circuit panel cited other circuit court opinions, all fraud cases. Not a single case cited by the Ninth Circuit panel supports their decision to merge the two separate sections of sentencing guidelines in Rising Sun. The only relevant case is Weischedel, directly on point in Rising Sun and confirming sentence enhancement.