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.