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.

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