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.

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