Saturday, October 3, 2009

Death Penalty: Ninth Circuit Reverses Two Cases: Schad v. Ryan, 581 F.3d 1019 (9th Cir. 2009); Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009)

Schad Ryan The Ninth Circuit continues to reverse death penalty sentences no matter how horrific the crime, the paucity of mitigating evidence, the rejection of state supreme court and U.S. District Court decisions confirming the sentence, and the inexperience of Ninth Circuit judges who have never tried a criminal case. The cost and the delay, the indifference to "finality" of convictions, disrespect for "comity" of the states, and oblivious to the Congressional mandate to limit federal appellate courts in habeas corpus review under the Anti-Terrorism & Effective Death Penalty Act (AEDPA) have stymied imposition of the death penalty. The Ninth Circuit has reversed all death penalty cases for the last decade with only a single exception. When the Ninth Circuit can't find wrongful prosecution exercise of peremptory challenges of minority jurors, lack of prosecutorial misconduct, no evidential error, or incorrect jury instructions, the court reverses based on "ineffective counsel" representing the defendant at trial or on appeal. No matter what counsel does in defense of the merits or mitigation of the sentence, it is "ineffective. Two recent decisions illustrate the objections cited by the Ninth Circuit in reversing the death penalty sentence. In August, 1978, an elderly man was found dead in the underbrush off the shoulder of a highway. Medical evidence established someone had strangled the victim with a cord knotted around his neck. Police subsequently found an abandoned vehicle rented by one Edward Schad, which had been stolen. Schad drove across the country using the victim's car and purchasing gasoline with his credit card. Additional evidence conclusively established Schad's culpability. Convicted of first degree murder and sentenced to death, the Arizona Supreme Court affirmed the conviction, as did the United States Supreme Court on cert. After four years of unsuccessfully attempting to set aside his conviction in state court, Schad filed a petition for habeas corpus in U.S. District court; denied. On appeal, the Ninth Circuit affirmed all challenges to the conviction but reversed the sentence previously upheld by the Arizona Supreme Court and the U.S District Court. Schad and his counsel spent four years in state court post-conviction proceedings. Counsel obtained 37 continuances, retained an investigator, a psychiatrist, collected declarations of Schad's good character from others, but never alleged "ineffective counsel" until the end of the four year period. The District Court concluded the extended period of time spent in investigation lacked "due diligence" required to set aside a conviction or sentence in habeas corpus proceedings and denied the motion. On appeal, the Ninth Circuit said counsel had not presented enough evidence of Schad's "troubled childhood "despite the probation report extensively reciting his abusive parents. " Not enough" on the "troubled childhood" said the majority of the Ninth Circuit panel. And, said the panel, the District Court should hold a hearing to determine whether Schad proceeded with "due diligence." A reading of the court decision reflects that counsel submitted substantial mitigating evidence at the trial, and whatever else of the "troubled childhood" that could have been produced would never have influenced the sentence. In addition, Schad had been previously convicted of second degree murder. The dissent skewered the majority decision. In the post-conviction proceedings, defense counsel could produce no evidence that would change anyone's mind. A "troubled childhood" does not justify strangling an innocent man, stealing his car and driving around the country on his credit card. Convicted and sentenced originally in 1979, retried, convicted and sentenced in 1985, the Ninth Circuit has ordered another hearing in 2009. If the result is not in his favor: another appeal; Schad v. Ryan, 581 F.3d 1019 (9th Cir. 2009) Hamilton v. Ayers "Troubled childhood" also is the excuse for insufficient mitigation evidence in sentencing the defendant to death in Hamilton v. Ayers. Hamilton methodically planned to execute his pregnant wife and collect insurance money. The evidence was overwhelming, and the cold blooded planning for the execution caused the jury to vote the death penalty in 1982. Affirmed on appeal by the California Supreme Court, the conviction confirmed in U.S. District Court (habeas corpus), and reversed on appeal in the Ninth Circuit on grounds defense counsel was "ineffective." Convicted in 1982, appeal decided in 2009; Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009). The California Attorney General should appeal both of these miscarriages of justice.

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