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.

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