Monday, November 22, 2010

Brewer v. Landrigan, 131 S.Ct. 445 200 (2010)

The most recent Supreme Court repudiation of the Ninth Circuit occurred in Brewer v. Landrigan, 131 S.Ct. 445 (2010). Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that crime, he repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered another man in Arizona. Convicted and sentenced to death in state court and affirmed on appeal, the Ninth Circuit granted his habeas corpus petition and reversed on its customary ground of "ineffective counsel." The Supreme Court reversed and remanded.
Shortly before the scheduled date of execution, Landrigan filed a 28 U.S.C. 1983 claim in U.S. District Court, contending the drug used in the execution was not approved by the FDA. The district court granted a temporary restraining order and, on appeal by the State of Arizona, a Ninth Circuit panel affirmed. The State sought to vacate the order in the Supreme Court. The Justices reversed the Ninth Circuit in a single paragraph, dismissive of the Ninth Circuit rationale of its decision, and citing the absence of any evidence to impugn the safety in using the drug.

Thursday, November 11, 2010

Smith v. Mitchell, 624 F.3d 1235 (9th Cir.2010)

Federal appellate courts can review state court convictions on habeas corpus, deferring  to state appellate courts absent non compliance with Supreme Court decisions; 28 U.S.C. 2254 (d).  Congress, frustrated by federal court interference with state courts, attempted to limit its appellate authority under 28 U.S.C. 2254 (d) but the Ninth Circuit repeatedly ignores the statute, citing it and then distinguishing it.

No case illustrates this practice more vividly than Smith v. Mitchell (all citations omitted).  The state trial court jury convicted Smith; the California  Court of Appeal affirmed the conviction; the California Supreme Court denied review; the U.S. District Court denied the petition for habeas corpus.  On appeal, a three judge Ninth Circuit panel reversed alleging insufficient evidence of guilt.The Supreme Court reversed the Ninth Circuit and remanded.  The Ninth Circuit on remand reversed the conviction again; the Supreme Court reversed and remanded again.  On remand, the Ninth Circuit reversed again for the third time. Every court that has reviewed this case disagreed with the Ninth Circuit.

The facts, briefly stated are uncomplicated.  The jury convicted the defendant in a "baby shaking" case.  Expert witnesses for prosecution and defense had testified to the cause of death, obviously disagreeing.   The Ninth Circuit preferred the defense witnesses and granted the petition for habeas corpus; Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006).  On appeal (cert.) the Supreme Court reversed and remanded (citing as authority a different 9th Circuit case it had previously reversed). On remand, the Ninth Circuit panel reached the same result the second time on a different theory and reversed; 508 F.3d 1256 (9th Cir. 2007). Reversed again by the Supreme Court and remanded (citing another case reversing the 9th Cir.).  On remand, for the third time, the Ninth Circuit reversed again.

It never occurred to these appellate judges, particularly those who have never tried a case, that the jury did not believe the defense witnesses.  And the prosecution did produce evidence warranting a conviction. The basis for an erroneous conviction, aside from a unanimous verdict, apparently eluded the trial judge, the California Court of Appeal, the California Supreme Court and the U.S. District Court.  The Supreme Court will see this case again if the Ninth Circuit does not reverse its three judge panel en banc.

Wednesday, November 10, 2010

Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010)

Lawyers who litigate in civil cases, and prosecutors and defense counsel in criminal cases, know the importance of voir dire of the jury. But all lawyers do not agree on whom to challenge, and their reasons vary infinitely.  They decide not necessarily based upon the answers to their questions but juror demeanor, their voice, the way they answer questions, their body language or just an intuition about the juror that suggest a peremptory challenge.

None of this resonates on the cold appellate record but the Ninth Circuit judges, particularly those who have never tried a case, ignore these factors and search the record in a quest for error-particularly in death penalty cases.

A perfect example is Crittenden v. Ayers.  From an exerpt of the case, here is the exchange between the prosecutor and the prospective juror: "Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. Ms. Casey, the only African-American prospective juror, noted on her questionnaire 'I don't like to see anyone put to death.' During voir dire, Ms. Casey said she was 'against death-being put to death' and 'against killing people.' She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty."
"After questioning Ms. Casey, the prosecutor challenged her for cause 'based upon her answer that she doesn't believe in the death penalty.' The trial court immediately denied the challenge without explanation."
"Several days later the exercise of peremptory challenges began. The prosecutor used his fifteenth peremptory challenge to remove Ms. Casey from the jury. Crittenden's counsel moved for a mistrial . . . and filed a lengthy motion asserting that striking Ms. Casey was race-based.

Objectively, would any lawyer fault this challenge?  The answers of the juror on the death penalty were so equivocal that the prosecutor challenged her for "cause."  But according to three judge panel,  the challenge could have been "race based," and they remanded for an evidential hearing despite the fact the California Supreme Court had already affirmed the conviction.

In addition, the evidence of guilt was overwhelming.  For the last decade in the Ninth Circuit, any death penalty is subject to reversal.  And on this case for the flimsiest of reasons.

Tuesday, November 2, 2010

Catholic League v. City/Co./San Francisco, 624 F.3d 1043 (9th Cir. ( 2010)

Here is a Resolution passed, but not enacted, by the San Francisco Board of Supervisors:
WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and
WHEREAS, The statements of Cardinal Levada and the Vatican that Catholic agencies should not place children for adoption in homosexual households, and Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children are absolutely unacceptable to the citizenry of San Francisco; and
WHEREAS, Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and
WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and
WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it
RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.
The Court: "Plaintiffs sued the City, claiming that this official government resolution violates the Establishment Clause. The district court dismissed their lawsuit for failure to state a claim upon which relief could be granted, and we initially affirmed." On rehearing en banc, in a split decision, the Ninth Circuit affirmed the District Court.

The Ninth Circuit decision cites innumerable cases on First Amendment Establishment Clause cases and ultimately concludes the plaintiffs lack "standing" and cannot prevail on the merits. If the Board of Supervisors had  submitted a Resolution  to any other group  in this callous and vicious language would the result be the same?

That the City & County of San Francisco expended taxpayer money to defend this attack on the Catholic Church is itself indefensible. But the underlying issue is this: Homosexual and lesbian groups repeatedly urge Californians to exercise "tolerance." This Resolution is an example of the City and County's understanding of "tolerance."

The City & County of San Francisco also enacted another ordinance mandatorily imposing racial and gender preference on those bidding on public contracts; Coral Construction, Inc., v. City & County of San Francisco.   The California Supreme Court rejected this ordinance in a 6-1 opinion.

Here is another example of San Francisco "tolerance": Bologna v. City  & Co. of San Francisco, 2011 WL 28629 (Cal.App.). 
While stopped in traffic, an illegal alien shot and killed three men sitting in another car.  Estates of the deceased men sued the City and Co. based upon its "sanctuary policy" established by the City.  Under this policy, the City & Co. do not report information to Immigration and Customs Enforcement (ICE) if aliens are arrested locally. A federal statute mandates all governmental entities to share information with ICE for arrests or convictions of illegal aliens; 8 U.S.C. 1373. Plaintiffs alleged the failure of police to report an alien previously arrested enabled him to maintain his freedom and kill the three men.

The Court of Appeal for the First District (San Francisco) unsurprisingly held the only relevant state statutes imposing liability on public officials inapplicable to the allegations in the Complaint.

Teposte v. Holder, 632 F.3d 2049 (C.A. 9)

Teposte v. Holder, 2011 WL  4189302  (C.A. 9); amended: 2011 WL 167037 (C.A. 9)

Teposte was admitted into the United States as a lawful permanent resident (also known as amnesty). One year later he was convicted of Cal. Pen. Code 246, "firing at an inhabited dwelling." The AG filed a removal proceeding. At the immigration hearing the IJ ruled the conviction constituted an "aggravated felony" (crime of violence), a deportable offense, disqualifies cancellation of removal, and ordered deportation; 18 U.S.C. 16 (b). The BIA affirmed.

Federal law defines a crime of violence as "any felony . . . involv[ing] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Whether firing at an inhabited dwelling is a "crime of violence" is so obvious that deportation should be automatic. No, the Ninth Circuit panel engages in academic hairsplitting unintelligible to the average person.  The court holds that reckless conduct or gross negligence is insufficient to categorize P.C. 246 as a "crime of violence." Only if the act was committed intentionally does a conviction qualify.  "Recklessness" in htis context is not a crime of violence?

Assuming gross negligence might escape the definition of a "crime of violence," common sense would justify the DA to dismiss the case.

The court admits its holding is restricted by a prior Ninth Circuit case, but another common sense application of an "aggravated felony" awaits the Supreme Court.

Sunday, October 31, 2010

Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010) [abrogated in Swarthout v. Cooke, infra.

Federal courts manage California county jails; state prisons; parole hearings; issue habeas corpus on state court rulings; decide state elections and Initiatives; supervise the Los Angeles Police Dept.; appoint Receivers. In Pearson v. Muntz, on rehearing en banc, the 9th Circuit held it could compel parole of a prison inmate denied release by the Governor of California who did not comply with state rules on parole release. The California Supreme Court has held that under California law, the Board of Prison Terms must find "some evidence" of the inmate's present dangerousness to prevent his release on parole. According to the 9th Circuit majority, the Governor, who exercises review authority of the Board, did not follow state law in denying Pearson's parole. According to the Ninth Circuit, failure of a state to follow state law violates federal due process. The dissenters (seven judges dissenting from denial of rehearing) in Pearson argued the 9th Circuit is bound by AEDPA, the federal statute circumscribing federal judicial review of state court cases and simultaneously limiting their appellate powers only to cases that fail to follow "established Supreme Court law." There is no Supreme Court law mandating the 9th Circuit to interpret state statutory or state Constitutional law unless violative of federal due process. The Supreme Court has held the states are under no obligation to allow parole, and the only "process" that is "due" allows the prisoner an opportunity to be heard. Not a single Supreme Court case authorizes a federal court to review state parole law other than that provision.

Thursday, October 28, 2010

Brewer v. Landrigan, 131 S.Ct. 445 (2010)

The Ninth Circuit affirmed a District Court injunction (after the state court refused to do so) mandating Arizona officials to disclose the efficacy of a drug obtained from foreign sources and not specifically approved for use in execution. Arizona appealed to the Supreme Court. Here is the order of the Supreme Court reversing the Ninth Circuit: "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. [Citing the District Court:'[T]he [District] Court is left to speculate. . .whether the non-FDA approved drug will cause pain and suffering.']. But speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering;' Baze v. Rees, 553 U. S. 35, 50 (2008). There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect. The motion to file documents under seal is denied as moot." To say that the Ninth Circuit decision affirming the District Court injunction against the use of a drug not approved by the FDA is specious would be an understatement. Landrigan was convicted in 1989 and the Ninth Circuit continues to undermine the death penalty with ideology-not law.

Friday, October 22, 2010

In re Gonzales, 623 F.3d 1242 (9th Cir. 2010): Pet. for Cert. Filed

Possibly worrying that the Supreme Court is aware of the usual "ineffective counsel" excuse the Ninth Circuit has used for the last decade in granting habeas corpus in state court cases, a three judge panel has discovered another method of delay for inmates in capital cases. In in re Gonzales, the panel held that the U.S. District Court must hold a hearing to determine whether the petitioner can communicate with counsel. According to the petition submitted by the eleventh attorney to participate in state and federal post trial proceedings, the legally incompetent petitioner cannot effectively communicate with counsel. The District Court had held an earlier hearing and the doctor agreed to the questionable veracity of Gonzales (who had been convicted of murder in 1991). The remedy: Mandamus to the trial court to hold another competency hearing. The Ninth Circuit panel concedes that habeas corpus is based entirely on the record, and an appellate court is bound by the trial court proceedings. What can the inmate possibly communicate? The records are the the only documents available for appeal, as the District Court ruled in denying the petition. Time for rehearing en banc. This is not the first case the Ninth Circuit in which has used this device and it cites as precedent only its own decision on record anywhere; Nash v. Ryan, 581 F.3d 1048, (9th Cir. 2009).

Wednesday, October 20, 2010

Farrakhan v. Gregorie, 623 F.3d 990 (2010)

Seven years ago the Ninth Circuit, in pursuit of its legislative goals and collaterally undermining state law, held that the plaintiff's Complaint alleging his voting rights had been abridged based on felony disenfranchisement under the Voting Rights Act (42 U.S.C. 1973 (2); VRA) could proceed to trial; Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). The District Court had ruled on summary judgment in favor of defendant Washington state. In the Ninth Circuit reversal and remand, the three judge panel required the trial court to use a different legal test. Years passed while the District Court held hearings, ultimately issuing a second summary judgment in favor of defendants. On appeal, the three judge panel reversed the trial court ruling again; Farrakhan v. Gregorie, 590 F.3d 989 (9th Cir. 2006). The Ninth Circuit agreed to hear the case en banc. The court reversed the panel and affirmed the summary judgment. But the language of the opinion does not end the litigation. Here is the language of the decision affirming the summary judgment: "[. . . We hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state's criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2." If that language is unclear, a reading of the concurring and dissenting opinions is equally opaque. Three other Circuit Courts of Appeal have dismissed this absurd claim alleged in the instant ase. The Voting Rights Act has nothing to do with forbidding felons to vote. That plaintiffs could even state a claim is unimaginable. That the Ninth Circuit would waste time and money on this case confirms the commitment of this court to enacting judicial legislation, eviscerating state law, and entertaining a frivolous law suit.

Wednesday, October 13, 2010

U.S. v. Terrell, 593 F.3d 1084 (9th Cir. 2010)

The facts in this case are irrelevant. The issue is whether the court can increase the sentence of the defendant for commission of burglary under the federal statute. The Armed Career Criminal Act (ACCA) defines a violent felony as any crime punishable by imprisonment of more than one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. See 18 U.S.C. 924(e)(2)(B). The court increases the sentence of a defendant if convicted with the addition of prior convictions. The Ninth Circuit has repeatedly interpreted 18 U.S.C. 924 in sentencing criminals and deporting illegal aliens under a "categorical approach." The court examines the statute to determine the scope of its application in the charge, transcript of the plea, or the trial court record. If the crime is "generic," the court applies the categorical approach; if the a crime apparently falls outside this category it is resolved under the residual clause above. The majority interprets the statute (burglary) in Terrell correctly despite its apparent duplication of the use of harm. The first clause of the statute listing "violent crimes" includes the "use, attempted use or threatened use" of physical force against another. This definition obliviously applies to crimes of robbery, assault, battery, theft from the person, rape or some degree of homicide. The second paragraph identifies specific crimes outside the personal type of crime: Burglary, a property crime; arson, a property crime; extortion, a property crime and personal crime; and the use of explosives, a property and/or personal crime. The statute also includes any conduct consisting of a "potential" risk of crime. The majority interprets the second clause as a "catch all" phrase, in effect. This language does not include the "use, attempted use or threatened use of harm," it includes the "potential" of that use. The conduct of a person can include the "potential" use of harm without "using any harm, attempting to use harm or threatening to do so." In the second clause, Congress obviously attempted to include all possible linguistic interpretations of the ACCA to avoid the academic hairsplitting indigenous to the Ninth Circuit. Under this new judicial interpretation of the statute, any risk of potential physical harm is the appropriate test. Burglary, a property crime, does not routinely include the "use, attempted use or threatened use of harm", nevertheless the conduct exposes the occupant of a dwelling house, a police officer or a bystander to a potential risk of confrontation and consequent harm. In other words the generic crime of burglary may include the risk of harm not ordinarily included in the statutory definition of the crime. The minority in Terrell, worried about the "train wreck" this interpretation has caused by an earlier Ninth Circuit decision in U.S. v. Mayer, 560 F.3d 948 (9th Cir.2009), identifies Terrell as an example. The minority says nothing about all the "train wrecks" caused by untold numbers of "categorical" approaches in Ninth Circuit precedent, particularly in immigration cases where the illegal alien should be deported. There is no reason to apply the categorical approach in sentencing to immigration cases as the Mayer case notes. The new rule will end that analysis.

Sunday, October 10, 2010

Ninth Circuit Cases on Supreme Court Docket: 2010-2011 Term

Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009); Cert. Granted Arizona Christian v. Winn, 562 F.3d 1002 (9th Cir. 2009) 130 S.Ct. 3350; Cert Granted Coleman v. U.S., 2010 WL 99000 (Schwartzenegger v. Plata) Premature & Dismissed Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009) Cert Granted Ryan v. Doody, 2010 WL 2130582 (Reversed & Remanded) Patrick v. Smith, 130 S.Ct. 1134 (2010) (Reversed & Remanded) McDaniel v. Brown, 130 S.Ct. 665 (2010) (Reversed & Remanded Camreta v. Greene, 2010 WL 2191186 (Cert Granted) Ashcroft v. Al-Kid, 2010 WL 2812283 (Cert Granted)

Friday, October 8, 2010

Detrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010)

Here is an edited version of the facts: The defendant Detrich and a companion picked up the victim who directed them to a location where they could buy cocaine. "When the syringe would not pick up the cocaine, Detrich began screaming that 'the needle wasn't any good, or the cocaine wasn't any good' and told the victim that she would have to pay for the bad drugs by having sex with him. Three witnesses reported that Detrich was holding a knife against the victim's throat." "Detrich then told the victim they were going for a ride, and Detrich, his companion and the victim left . . . [the companion drove], Detrich sat in the middle, and the victim sat on the passenger side, against the door . . . while stopped at a red light, the companion saw Detrich 'humping' the victim and asking her how she liked it. Soon thereafter, the companion looked again and saw that the victim's throat was slit. He further testified that Detrich then hit the victim and asked her who gave her the drugs, and that the victim only gurgled in response. Detrich asked twice more, and the victim responded with only a gurgle. . . the companion claims that he never saw Detrich actually stab the victim, but that he himself was poked in the arm with a knife several times. [The companion had blood on his shirt]. A pathologist established that the victim was stabbed forty times. The companion (who pled guilty] testified that, "at this point, Detrich said to him, 'It's dead but it's warm. Do you want a shot at it?'. . . The two pulled over in a remote area approximately fifteen minutes from the victim's home, and Detrich dragged the victim's body into the desert. The two men then drove to a friend's house . . . The friend testified that the men showed up at his house at 4 a.m., that Detrich was covered in blood . . About an hour later, Detrich told the friend that he had killed a girl by slitting her throat because she had given them bad drugs." This crime occurred in 1989, and the jury found Detrich guilty. The conviction was reversed on legal grounds, the State retried the case and the jury again convicted Detrich. The judge held a hearing and imposed the death penalty. The Arizona courts affirmed and the U.S. District Court denied habeas corpus. On appeal to the Ninth Circuit, the court panel in 2010 reversed the 1989 crime on the usual grounds of ineffective counsel.

Thursday, October 7, 2010

Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir.)

Plaintiff, the mother of her deceased son, filed a 1983 Fourth Amendment excessive force and wrongful death case against a CHP officer in conjunction with a state law wrongful death claim. In the course of duty, the officer shot the deceased man during a struggle with him and, as expected, the facts were in dispute. The jury voted a "favorable verdict" (the panel definition) on the wrongful death claim and one of the 1983 wrongful death claims. The jury awarded the plaintiff one dollar on each claim. The court awarded attorney fees and costs in excess of $136,000 pursuant to 42 U.S.C. 1988. The officer appealed.
According to the Ninth Circuit panel, the plaintiff received a"favorable" verdict. If one dollar is a favorable verdict, the English language has no meaning. What really happened at trial is the plaintiff's lawyer knew the case was lost and pleaded for a nominal award-the jury not knowing this verdict meant the right to seek attorney fees. The Supreme Court has not looked with favor at this kind of case where a nominal damage award allows attorney fees; Farrar v. Hoby, 506 U.S. 101 (1992). " If a district court choses to award fees after judgment for nominal damages it must [identify] the litigation succeeded in addition to obtaining a judgment for nominal damages."

The Supreme Court denied cert.; Depee v. Mahach-Watkins, 2011 WL 55395 (U.S.)

Wednesday, October 6, 2010

Thompson v. Runnel, 621 F.3d 1007 (9th Cir. 2010)

The Ninth Circuit majority panel opinion (2-1) once again ignores a Supreme Court admonition, cited by the dissenting judge, that "a federal appellate court 'lacks' the fact finding and record keeping capabilities of a district court; McNary v. Haitian Refugee Ctr., 498 U.S. 479)1991)." Not only that, the majority panel writes its decision as though acting in the role of defense counsel. The court majority sets aside the decision of the California Court of Appeal affirming a 1998 conviction in state court, and reverses the U.S. District Court habeas corpus decision affirming the conviction of an admitted murderer. Reversed twelve years after the murder by a court that never saw or heard a single witness, disagreed with the trial court, the state court appellate judges, and rejected its U.S. District Court finding. The defendant and former boy friend of the murder victim told his father he was worried about his girl friend. He and his father went to her house and found she had been stabbed to death and her throat slit. Police immediately focused on the defendant and drove him to the police department to ask questions about the murder. The majority describes the interview room: "The [detectives] moved the defendant into an interview room containing three chairs and no other furniture. . . [t]he officers invented an eyewitness account that put the defendant at the victim's house at 2:30 p.m." As the dissenting judge points out, the defendant slept in the room all the time awaiting the officers who apologized for the delay, the room was air conditioned and he was offered food and drink. In any event, the defendant was not Mirandized but ultimately incriminated himself. Quoting the panel: "The interrogation continued . . . and the the officers told the defendant -again-, falsely that they found "evidence connecting him with the crime . . .Taking the bait . . . [t]he questioning resumed and the defendant elaborated on the details of the murder. At that point the officers gave him the Miranda admonition . . . The following day they repeated the Miranda admonition and the defendant offered more details." Without recounting all the additional details of defendant's custody, the dissenting judge adds a significant amount of information: that the interrogation room had a couch and television; the defendant was not handcuffed or searched; he never asked for food or water, was not cold; police were not in uniform or armed; the officers offered to let him answer questions at another time if he elected to do so; when he claimed the room was cold the officers turned up the heater. The majority and dissenting judges both agreed the officers did not originally warn the defendant before questioning him but did so after his confession. Failure to warn originally does not, under Supreme Court law, necessarily undermine Miranda if there is a subsequent voluntary confession. In the instant case, the leading Supreme Court decision on invocation of the Miranda decision is Oregon v. Elstad; 470 U.S. 298 (1985). In Elstad, the Supreme Court held "Miranda does not require that subsequent statements [by a suspect] given after unwarned statements [should] be discarded as inherently tainted, and admissibility of any subsequent statement should turn solely on whether it is knowingly and voluntarily made." In a subsequent case, the Supreme Court decided Missouri v. Seibert, 542 U.S. 600 (2004). The majority Ninth Circuit panel cites Seibert, a 5-4 decision, denying admissibility in evidence of unwarned statements if police use a "two step technique" designed to subvert the Miranda warnings by failing to warn, obtaining a confession, subsequently warn a suspect and obtain a second confession.

Monday, October 4, 2010

Prison Legal News, 608 F.3d 446 (9th Cir. 2010)

A non-profit organization called Prison Legal News (PLN) prints a monthly magazine containing news relating to prison conditions and legal rights of prisoners. Responding to a complaint from prisoners that the California Department of Corrections and Rehabilitation was censoring the magazine and other written materials, the PLN filed a 1983 action against the State. After a year of negotiations, in 2006 the parties reached a settlement highly beneficial to PLN, including a clause authorizing counsel for PLN to seek attorney fees and costs for their representation in the negotiations. The agreement also authorized counsel for PLN to monitor compliance with the settlement terms. Under the terms of the settlement, the court retained jurisdiction to enforce compliance. The parties subsequently informed the court they had reached a settlement.

Wednesday, September 1, 2010

Detrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010): Pet. for Cert. Filed

Another gruesome and indefensible murder with no argument on guilt. In its usual rambling summary of counsel and his "ineffective defense" to a crime that warrants the death penalty no matter the content of the "mitigating" evidence, the Ninth Circuit panel remands the case for another hearing on the penalty phase.

Tuesday, August 31, 2010

Crittenden v. Ayers, 624 F.3d 943 (2010)

The Ninth Circuit identifies three major categories in reversing the death penalty. For the last decade this court has reversed every case on one or more of these grounds. Invoking habeas corpus, the court in all three categories filed its decision after the California Supreme Court had affirmed the conviction and penalty. First: if the prosecution excuses a black juror in a trial involving a black defendant the peremptory challenge violates Batson; Second: Trial counsel is ineffective no matter what he does; Third: An erroneous jury instruction or jury misconduct occurred. Because the Ninth Circuit panel reviews trials heard decades ago, it initially assures the reader its opinion is not governed by AEDPA, thereby enabling use of the less deferential standard in effect before Congressional enactment of the revised standard. Yet the Supreme Court has repeatedly reversed the Ninth Circuit in censorious terms. In Crittenden, Ms. Casey, the only African-American prospective juror, noted on her questionnaire I don't like to see anyone put to death. During voir dire, Ms. Casey said she was against death-being put to death and against killing people. She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty." Would any prosecutor not challenge a juror who answered in this manner? The Ninth Circuit panel thought this peremptory challenge violated Batson despite the trial judge's finding no discrimination occurred. The Supreme Court has repeatedly reminded appellate courts that the trial judge is in the best position to judge the prosecutor's credibility. Not in the Ninth Circuit.

Friday, August 6, 2010

Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010)

Thomas v. Ponder is an other example of Ninth Circuit supervision and management of state prisons. Thomas, an incarcerated prisoner, filed a U.S.C. 1983 case in federal court alleging violation of the Eighth Amendment deprivation of his right to exercise. The state prison had experienced the stabbing of two Correction Officers, and ordered a lockdown of the high security facility occupied by Thomas and other inmates. Thomas, although not involved in the assault, had a lengthy disciplinary record and had threatened officers and other inmates. When the lockdown was modified, the officers offered Thomas access to exercise if he signed an agreement not to engage in violence. He refused to sign the agreement despite several opportunities to do so. The District Court dismissed the case on summary judgment. The 2-1 majority of the Ninth Circuit panel reversed. The Ninth Circuit panel, after extolling the virtue of exercise, held the prison officials could not mandate a prisoner to sign an agreement declining to engage in violence. According the majority, Thomas did not constitute a "substantial risk" and his "liberty interest," a phrase masquerading as Due Process in the Ninth Circuit, was violated. The phrase is nothing more than "policy." Or compare Richardson v. Runnels, 594 F.3d 666 (9th Cir. 2010. A series of attacks on correction officials in state prison by African Americans in a high security building led to a lockdown of all blacks in that facility. The plaintiff in a 1983 case argued he was locked down because he was black and not for participation in the assaults. According to the Ninth Circuit, the prison officials (in a high security facility) did not prove he was involved in the assaults and allowed his 1983 action to proceed. Yes. First you must prove that someone was involved in an assault before you can lockdown the prisoner. For 13 days.

Saturday, June 26, 2010

Guy v. City of San Diego, 608 F.3d 582 (9th Cir. 2010)

This case illustrates not only the justification for innumerable reversals of the Ninth Circuit by the Supreme Court but the indefensible decision of judges who lack any understanding of jury trials. The plaintiff sued the City of San Diego and three of its officers alleging the use of excessive force in a conflict between himself and the officers. Obviously the witnesses for both sides told inconsistent stories, and the jury found two of the officers not liable. In the verdict as to the third officer, the jury found he violated plaintiff's Fourth Amendment right to be free from excessive force, and his actions caused harm to the plaintiff. The jury awarded the plaintiff no compensatory or punitive damages. Counsel for plaintiff requested attorney fees in a special verdict and the jury awarded plaintiff one dollar. The police department conducted an internal investigation and exonerated the officers. Attorney fees are awarded 1983 cases, regardless of the damages award, if the jury finds nominal damages achieved tangible results "sparking a change in policy."

Friday, June 25, 2010

Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)

The Holder v. Humanitarian etc. case is the first of four cases decided by the Supreme Court reversing the Ninth Circuit on the same day. See, Rent-A-Center West, Inc. v. Jackson, 2010 WL 2471055 (Arbitration); Monsanto Co. v. Geerston Seed Farms, 2010 WL 2471058 (Environment); Kawasaki Kisen Kalsha LTD. v. Regal-Beloit Corp. 2010 WL 2471056 (Forum Selection Clauses) In 1996 Congress passed the Anti Terrorism and Effective Death Penalty Act, 18 U.S.C. 2339B prohibiting anyone from providing " material support or resources" to certain foreign organizations that engage in terrorist activity. The plaintiffs filed litigation to prevent enforcement of the statute against their attempt to provide "humanitarian and non violent services" to two groups whom the State Department had listed as terrorist organizations. Plaintiffs alleged the statute, as applied to them, violated the First and Fifth Amendments. The Ninth Circuit agreed, at least in part, and struck down certain portions of the statute on grounds the terms were too vague; 552 F.3d 916 (2009). The U.S. government appealed. The Supreme Court upheld the statute in every respect, at least as to the facts in this case. The Court majority rejected the plaintiffs' contention that they were engaged in assisting in providing peaceful means to the terrorist organization. That a terrorist organization somehow distributes these funds to non-terrorist activities defies reason. Terrorists do not construct "firewalls" to distinguish the appropriate location for receipt of funds or services. Funding terrorists for so-called "peaceful purposes" is an oxymoron. Funding provides the means for imposing terrorist objectives and reduces dependence on collateral sources. That the three dissenting judges think the plaintiffs' funds will be used for peaceful purposes can hardly be characterized as anything other than naive, to put it mildly.

Tuesday, June 15, 2010

Taylor v. Sisto, 606 F.3d 622 (9th Cir. 2010)

The trial judge in a state court explained the role of the jury to prospective jurors by warning them to put their personal experiences aside to avoid the potential of bias or prejudice. Counsel for the defendant did not object to this pre trial comment. The California Court of Appeal affirmed the conviction and dismissed the objection to improperly instructing jurors as harmless. On habeas corpus in U.S. District Court, the judge agreed and denied the petition. Apparently the Ninth Circuit panel thought this instruction to jurors so prejudicial it reversed the jury verdict of guilt. Aside from this incredulous result, the panel completely avoided AEDPA and simply cited inapplicable Supreme Court cases. Not a single case applied to these facts. The 2-1 majority cited cases where blacks and women were excluded from jurors. No one was excluded in Taylor's case on those grounds. This decision is another example of an inexperienced panel of judges who never tried a criminal case. Here is the dissent (citations deleted):

Sunday, June 13, 2010

Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010)

A panel of three Ninth Circuit judges, who have never been inside a criminal courtroom, overruled: a unanimous jury verdict in state court; an affirmance of the conviction by the California Court of Appeal; a denial of a hearing in the California Supreme Court; denial of a petition for habeas corpus in a U.S. District Court; and granted the defendant Lunbery's petition for habeas corpus. Without reciting the evidence, the prosecution case depended almost exclusively on the defendant Kristi Lunbery's confession six years after her husband was found dead in their home. Death was caused by a single gunshot to the head but the weapon was never located. Lunbery confessed to detectives but later repudiated her confession. Sheriff's investigators interviewed an acquaintance of a previous tenant in the Lunbery house who reported seeing a substantial amount of drugs and one Garza. Interviewed. Not testified. A "confidential informant" who did not testify, told detectives . . ."that he felt the killing had been a mistake." A witness testified on the night before the body was found he saw a distinctive car park in front of the Lunbery residence for twenty to thirty seconds and drove off. He apparently heard no gunshot. Investigators interviewed another "confidential informant" who linked the car to Garza. A third person told detectives he and two friends were discussing the victim's death several days later when Garza approached their table and said "My partners blew away the wrong dude." Correctly, the trial court denied all motions to introduce all this hearsay. The Ninth Circuit held that the defendant Lunbery had a right to allege a third party committed the crime regardless of hearsay rules if her right to Constitutionally present a defense under the Sixth Amendment is frustrated. Citing Chambers v. Mississippi, 410 U.S. 284 (1972), a case entirely different from Lunbery, the Ninth Circuit said this inadmissible hearsay was admissible. Hearsay testimony from two "confidential informants," and from two men who heard Garza, now deceased, admit a mistaken killing, is enough to warrant reversal? According to the Ninth Circuit, "The excluded testimony thus bore substantial guarantees of trustworthiness . . . " The Ninth Circuit panel only cited Chambers to justify Supreme Count precedent in an attempt to comply with AEDPA. The Supreme Court has repeatedly reprimanded the Ninth Circuit for evading the restrictions of AEDPA. Conceding the weakness of the prosecution case, what did defense counsel argue to the jury without the "trustworthy" hearsay evidence? Only the credibility of the defendant. If a jury does not believe a witness, the "trustworthy" evidence is irrelevant. Kristi repudiated her confession, without which the prosecution could not have proved its case. No gun was found; no bloodstained clothes were found; no fingerprints. And no witnesses to the crime. The jury did not believe her testimony. All the hearsay meant nothing but speculation.

Monday, June 7, 2010

Schad v. Ryan (Dept of Corrections ), 606 F.3d 1022 (9th Cir.2010)

In another death penalty case the Ninth Circuit has stymied the state court system and authorized a further "evidentiary hearing." Eight judges dissented. Here is the language of the dissent: "The majority opinion [not referenced here ]substantially erodes AEDPA's requirement that a person challenging the constitutionality of his state conviction diligently pursue his claim in state court in order to obtain an evidentiary hearing in federal court. 28 U.S.C. 2254(e)(2). Not only does the majority's decision contravene the Supreme Court's decision in Williams [v. Taylor] by permitting an evidentiary hearing in the absence of an initial showing of diligence by the petitioner, it effectively eviscerates the diligence requirement altogether by endorsing a simultaneous hearing on both the petitioner's diligence and the merits of his claim of ineffective assistance of counsel (IAC). In approving of a single hearing on both issues, the court allows a petitioner to present new evidence on the merits of his underlying claim in a full-blown evidentiary hearing without first establishing that he was diligent in developing such evidence in state court. Moreover, the majority's decision effectively eliminates the requirement that a petitioner present a colorable claim for federal habeas relief before a federal court may grant an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The potential for mischief created by the majority's approach is evident here, where it urges an evidentiary hearing on the merits of Schad's IAC claim without ever considering the double deference owed under Strickland v. Washington, 466 U.S. 668 (1984) and AEDPA. Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009) (explaining that a federal court's evaluation of a Strickland claim under 2254(d)(1) must be deferential to both the state court's decision and counsel's strategic choices). We should have reheard this case en banc to rectify these departures from Supreme Court precedent and to correct what district courts in our circuit are likely to perceive as a confusing directive to hold evidentiary hearings where Congress and the Supreme Court have determined that none are permitted." "After more than thirty years of litigation, this case has not come to rest. Schad was convicted of first-degree murder in 1979, and was sentenced to death in 1985 following a retrial. The majority's order remanding for further proceedings and a possible evidentiary hearing ensures that the litigation will continue for several more years despite every indication that it should end." This dissent speaks for itself. A majority of Ninth Circuit judges will not allow imposition of the death penalty under any circumstances. One judge dissented from the three panel decision in addition to the eight judges who dissented from a hearing en banc. This case will undoubtedly be reviewed by the Supreme Court.

Sunday, May 16, 2010

Hui v. Castaneda, 130 S.Ct. 1845 (2010)

The Public Heath Services Act (42 U.S.C (a) unambiguously precludes a Bivens action against U.S. Public Health Services personnel for Constitutional violations arising out of their official duties. The plaintiff (by his estate) sued the U.S Government for, in effect, medical negligence committed during his detention (presumably an illegal alien), and alleged violation of Fifth and Eighth Amendment rights. The Ninth Circuit read an exception into the Act allowing the suit to go forward. The Supreme Court unanimously reversed. The Act is explicit in foreclosing Constitutional violations allegedly committed by a federal employee providing medical services, and the plaintiff only sued to get attorney fees and exemplary damages. The plaintiff has a remedy under the Federal Tort Claims Act. The Supreme Court reverses the Ninth Circuit decision reported in Castenda v. U.S., 546 F.3d 682 (9th Cir. 2008): 9-0.

Monday, May 3, 2010

Salazar v. Buono, 130 S.Ct. 1803 (2010)

The facts in this case (under different named parties) have been summarized in former blogs. In each of the cases decided by the U.S. District Court and the Ninth Circuit, the judges ruled the Latin cross honoring deceased veterans of World War I embedded on federal land in a vast isolated national park violated the First Amendment Establishment Clause and enjoined its presence. Both courts held the plaintiff had "standing" to sue because he was "offended" by a cross on publicly owned land. Incredulously, the Ninth Circuit allowed his offended sensibilities to establish "standing." This is not the first time the Ninth Circuit has allowed "offensiveness" to impart "standing" but the Government did not appeal the case. In response to the Ninth Circuit injunction, Congress arranged a "land exchange" with a private party in order to retain the Latin Cross on private property. The District Court and the Ninth Circuit, the latter characterizing the exchange as a "sham," refused to acknowledge Congressional power to arrange the transfer. On appeal from the Ninth Circuit decision to the Supreme Court, the Justices reversed the Ninth Circuit and ordered the District Court to conduct an evidentiary hearing to determine correct application of First Amendment law. The Supreme Court criticized the Ninth Circuit for applying the wrong law. The only issue before the Supreme Court consisted of the plaintiff's attempt to expand the scope of the injunction the District Court had originally issued and subsequently expanded. The facts, and the Supreme Court decision, are not as important as the language used by the Court in its decision. The Supreme Court chastised the U.S. District Court and the Ninth Circuit for ignoring the proper legal approach to the plaintiff's challenge to the erection and maintenance of a Latin cross on federal land. The Court majority applied its previous Establishment precedent, and the first requirement to avoid its violation requires a religious symbol to include a secular component. In this case, the cross did not attempt submission to any religion but was a memorial to soldiers who died in World War I. The irony of this case is a sad footnote that not a single monument exists to honor those soldiers who died or were wounded. See, note following 16 U.S.C. 431 (listing officially designated national memorials, including the National D-Day Memorial and the Vietnam Veterans Memorial). Research discloses no other national memorial honoring American soldiers-more than 300,000 of them-who were killed or wounded in World War I. See generally A. Leland & M. Oboroceanu, Congressional Research Service Report for Congress, American War and Military Operations Casualties: Lists and Statistics 2 (2009). "It is reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained. Cf. Van Orden v. Perry, 545 U.S. 677, 702-703, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment) (40 years without legal challenge to a Ten Commandments display suggest[s] that the public visiting the [surrounding] grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage." The Supreme Court notes the only issue for their resolution is the expanded terms of the injunction issued by the District Court and affirmed by the Ninth Circuit. Although Salazar v. Buono is narrow decision, the majority decision contains some interesting language. Here are the excerpts: "The meaning conveyed by a monument is generally not a simple one, and a monument may be 'interpreted by different observers, in a variety of ways'. The cross is of course the preeminent symbol of Christianity, and Easter services have long been held on Sunrise Rock, . . . But, as noted, the original reason for the placement of the cross was to commemorate American war dead and, particularly for those with searing memories of The Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict." "If Congress had done nothing [about the Ninth Circuit decision], the Government would have been required to take down the cross, which had stood on Sunrise Rock for nearly 70 years, and this removal would have been viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor. The demolition of this venerable if unsophisticated, monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country's religious heritage." "This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework." ". . .[T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

Wednesday, April 28, 2010

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010)

Under California law, the Board of Parole Hearings (replacing the former name of Board of Prison Terms) must grant parole to a state prisoner unless there is "some evidence" of the parolee's future dangerousness; In re Lawrence, 190 P.3d 535 (Cal. 2008) and In re Shaputis, 190 P.3d 573 (Cal. 2008). Both of these decisions written by the California Supreme Court have engendered numerous appeals in state court and in federal court. Hayward was convicted of second degree murder in state court and sentenced indeterminately to fifteen years to life. The Board granted his application for parole subject to Gubernatorial concurrence. Then-Governor Davis denied parole. Hayward filed habeas corpus in federal court. Two federal courts, Irons v. Carey, 505 F.3d 846 (9th Cir. 2007) and an earlier decision of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008) held a state prisoner has a "liberty interest" in parole. In the original Hayward case the Ninth Circuit three judge panel held the Governor failed in his duty to grant Hayward parole under the circumstances. The "circumstances" included a second degree murder conviction and 28 arrests including an armed robbery. The Ninth Circuit granted a rehearing in Hayward v. Marshall, vacated the panel holding, and canceled the ruling in Irons v. Carey. The Ninth Circuit cited the Supreme Court case of Greenholtz v. Inmates of Nebraska Penal & Correction Complex, 442 U.S. 1 (1979). "Greenholtz addressing a claimed right to parole, holds that '[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.' The Hayward court continues: The [Supreme] Court distinguishes parole from parole revocation, because revocation is a 'wholly retrospective factual question,' but release on parole depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals.' "Greenholtz emphasizes that parole is a discretionary, predictive decision. Parole decisions are 'equity type judgment[s] that cannot always be articulated in traditional findings because the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. "The [Supreme] Court rejects the due process argument for a some evidence standard: Nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular evidence in the inmate's file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The state parole statute at issue in Greenholtz arguably created a liberty interest to some evidence because it said that the prisoner shall be paroled unless certain negative conditions applied. But the Court rejected the argument. The Constitution does not require more than an opportunity to be heard and a statement telling the prisoner why he was not paroled." The Ninth Circuit ruled that the California parole process does not violate any federal Constitutional right. Surprisingly, the entire en banc court denied the petition for habeas corpus but the concurring and dissenting judge resorted to personal and abusive remarks about the majority opinion entirely unnecessary and injudicious.
See, subsequent blog on Parole (Swarthout) above

Monday, March 22, 2010

Harrison v. Gillespie, 590 F.3d 823 (9th Cir. 2010); en banc reversed: 2011 WL 546585 (C.A. 9)

Whether the Ninth Circuit reverses on grounds of alleged improper exclusion of jurors, prosecutorial misconduct, evidentiary errors committed by the trial court, insufficiency of the evidence, faulty jury instructions or ineffective counsel, the nadir of their opinions is a Nevada state court decision in Harrison v. Gillespie, 2010 WL 597487.
The jury found the defendant guilty of murder but could not agree on the appropriate sentence of life or death. The jury foreman informed the judge the jury was at impasse and could not reach a verdict. The judge declared a mistrial and discharged the jury without polling them for their agreement or disagreement with the jury foreman. The Ninth Circuit held Nevada could not retry the defendant on the penalty phase on the grounds of double jeopardy (The State cannot try the defendant twice for the same crime). The dissenting judge of a three judge panel noted the majority had not cited a single case supporting its decision.
Polling (determining the votes by the number of jurors in disagreement; or otherwise discussing the impasse) the jury whose foreman declared the jurors were at impasse is discretionary with the judge, undoubtedly good trial practice, but failure to do so certainly does not warrant reversal on grounds of double jeopardy. Said the dissenting judge: The foreperson's answers to the judge's questions were categorical, unequivocal, uncontradicted, and consistent with the jury's failure to return a written verdict. Conspicuously missing from the majority opinion is a single federal case-or indeed any case-establishing a constitutional right to a partial verdict when it comes to sentencing, and certainly not when a jury is required to weigh intangible factors and ultimately determine a just punishment as a matter of discretion. The verdict in a penalty phase trial is the gestalt of the jury's weighing, balancing, and moral judgment. It is the jury's final decision that counts, not its thoughts in progress. Whether or not the state judge could have engaged in more detailed questioning, the federal constitution simply does not require an inquiry into the status of unfinished deliberations in a profoundly discretionary matter such as this before declaring a mistrial. Unsurprisingly, this case was reheard by the full court; Harrison v. Gillespie, 596 F.3d 551 (9th Cir. 2010)
On rehearing, the en banc court reversed: "1) section 2241 supplied jurisdiction over petitioner's double jeopardy challenge;
(2) the Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply;
(3) trial court did not err by refusing to poll the jury regarding whether it had ruled out the death penalty as a sentence before declaring a mistrial;
(4) petitioner had no per se constitutional right to have trial court poll jury about whether it had reached a preliminary decision against imposing the death penalty; and
(5) Double Jeopardy Clause did not preclude inclusion of death penalty as sentencing option upon retrial."
District Court judgment affirmed.



Friday, February 26, 2010

Farrakhan v. Gregiore & St. of Washington, 590 F.3d 989 (9th Cir. 2010); On Rehearing, reversed: 623 F.3d 990 (9th Cir. 2010)

Farrakhan v. State of Washington, 338 F.3d 1009 (9th Cir. 2003) Farraknan v. Gregiore & State of Washington, 590 F.3d 989 (9th Cir. 2010) Rehearing en banc granted: Farrakhan v. Gregiore, 590 F.3d 1989 (9th Cir. 2010) Farrakhan, an incarcerated prisoner in the state of Washington filed a lawsuit in 1996 alleging the disproportionate ratio of black prisoners in custody deprived them of race based voting rights under the federal Voting Rights Act, 42 U.S.C.1973. The district court summarily denied this absurd request but the prisoner appealed, requesting the Ninth Circuit to invalidate the statute. Despite the ludicrous allegation, the Ninth Circuit agreed (sort of) and sent the case back to the trial court to take additional findings of fact. From an excerpt of one of the dissenting judges in Farrakhan: This is a dark day for the Voting Rights Act. In adopting a constitutionally questionable interpretation of the Act, the [majority] panel lays the groundwork for the dismantling of the most important piece of civil rights legislation since Reconstruction. The panel also misinterprets the evidence, flouts our voting rights precedent and tramples settled circuit law . . . all in an effort to give felons the right to vote. The court should have taken this case en banc (full court) and brought order back into our case law. I dissent from the court's failure to do so. The dissenting judges are referencing the state of Washington statute disenfranchising felons from voting. As noted by the dissenting judge, every state in the union forecloses convicted felons from voting, and Washington had enacted the statute in 1866 prior to enactment of the Fourteenth Amendment. Nothing in the Voter Rights Act remotely adverts to felony disenfranchisement and Congress has never considered enacting such legislation.* The dissenting judges were not finished with their criticism: They (Farrakhan )[have] no evidence of a history of official discrimination in voting, no evidence of racially polarized voting, no evidence of voting practices or procedures often used to discriminate against minorities, no evidence of discrimination in candidate slating, no evidence of discrimination in health, education or employment, no evidence of racial appeals in campaigns, no evidence that minorities have a harder time winning elections, no evidence that representatives are unresponsive to minority communities and no evidence that felon disenfranchisement is an unjustified policy. Plaintiffs have utterly failed to meet their burden of producing evidence showing vote denial on account of their race. Every state in [the Ninth Circuit] bars felons from the voting booth. The panel's decision will change all that. It contradicts our case law and the law of at least four other circuits, making us an outlier in voting rights jurisprudence. It does so without so much as acknowledging congressional approval of felon disenfranchisement and without any consideration of the grave constitutional consequences of its actions. I am troubled not only by my colleagues' insistence on an indefensible interpretation of the Voting Rights Act, but also by their utter disregard for our precedent. I dissent.** * The Second Circuit had considerable trouble with the voting rights issue and its judicial history is suspect. That court finally concluded the prisoner-who alleged the same conduct as in Farakhan- was not a resident of New York and did not have standing to sue; Muntquim v. Coombe, 449 F.3d 371 (2d Cir. 2006). A very curious decision. The Ninth Circuit panel sent the case back to the district court for additional findings. After holding hearings on the case, the district court again ruled in favor of the defendants (Gregoire and the State of Washington.) The plaintiffs appealed the decision and again the Ninth Circuit panel (2-1) reversed and found in favor of plaintiffs; Farrakhan v. Gregoire, State of Washington, 590 F.3d 989 (9th Cir.2010). Incomprehensible as it is, the Ninth Circuit found that discrimination exists in the Washington State criminal justice system and that evidence constituted a violation of the Voting Rights Act disenfranchising minority voters. In support of its allegations, the plaintiffs introduced two statistical reports from experts concluding minorities accounted for a disproportionate number of prisoners attributable to discriminatory police and prosecution practices. As the court points out, the State offered no contradictory evidence and argued the plaintiffs evidence legally insufficient. Without knowing the legal strategy, criticizing counsel for the State of Washington is difficult. But the Ninth Circuit panel repeatedly offered the absence of this evidence as a failure to contradict plaintiffs case. The routine complaint that minorities are stopped, searched and charged disproportionately is evidenced only by statistics. Every arrest is different and no one denies the crime rate in minority communities is higher than elsewhere. Reactions of car drivers or pedestrians stopped by police vary and statistics do not account for their demeanor, conduct, attitude and a variety of other factors. That alleged discrimination in minority communities supported by two experts paid by plaintiffs to render their opinions is tenuous at best. Even assuming the accuracy of the reports, that the criminal justice system is infected with discrimination is irrelevant on whether someone can vote under the Voting Rights Act. That statute was never intended for use in this case. This decision is at odds with every other Circuit Court of Appeals and its decision is best expressed by the dissent in he original case . And once again evidences federal court interference in state issues.
On rehearing, reversed by the en banc court; 623 F.3d 990 (9th Cir. 2010) 

Monday, February 8, 2010

Patrick v. Smith, 130 S.Ct.1134 (2010); McDaniel v. Brown 130 S.Ct. 665 (2010)

The Supreme Court has vacated the judgments and remanded Patrick v. Smith, 130 S.Ct.1134 (2010) and McDaniel v. Brown, 130 S.Ct. 665 (2010). In both cases the Ninth Circuit used the wrong legal test. Patrick v. Smith was reviewed in this Blog on March 5, 2008. McDaniel was reviewed on February 3, 2009. The Supreme Court spared no mercy on the Ninth Circuit and severely criticized that court for ignoring the law.

Wednesday, January 13, 2010

Conn v. City of Reno, et al, 591 F.3d 1081 (9th Cir. 2010)

The citation for the original opinion is Conn v. City of Reno, 572 F.3d 1047 (9th Cir. 2009) This dissenting opinion (Conn v. City of Reno, et al) was published on January 8, 2010. Although the the facts are unfortunate, their recitation is not the issue. Police detained an intoxicated woman who committed suicide subsequent to her release from civil detention. The family sued the arresting officers and the City of Reno in federal court under U.S.C. 1983. Both asserted qualified immunity in a motion for summary judgment but the Ninth Circuit three judge panel denied their defense. The dissent is important because of its criticism of the role of police mandated by the panel and judicial imposition of duties imposed on the City at the expense of individual responsibility. The dissenting judges wrote in response to a petition for a hearing en banc: "Until this opinion came along, police officers weren't required to serve as babysitters, psychiatrists or social workers, and judges didn't run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micromanage the police, who in turn will serve as mental health professionals. The panel's reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions." "At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists. See, e.g., DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200 (1989). This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat." "In the panel's hands, standards that are meant to limit liability to all but the most extreme cases become tools for imposing the policy preferences of unelected federal judges. This combination of errors amounts to a toxic recipe for judicial micromanagement of local institutions." And that last comment is at the heart of the issue. Once again a Ninth Circuit imposes policy preferences with no precedent in support of a decision clearly headed for the Supreme Court.

Friday, January 8, 2010

Doe v. Reed, 586 F.3d 671 (9th Cir. 2009); Affirmed in S.Ct, 130 S.Ct.2811 (2010)

The Washington State Legislature enacted legislation extending rights and responsibilities to state registered domestic partners. In response, voters signed petitions to submit the legislation to a referendum. Several opposition groups sought disclosure of all the names of those who had signed the petitions. Washington law provides a Public Records Act (PRA) mandating disclosure of signatories who signed petitions in support of a referendum. To assure the integrity of an election or petition for referendum, Washington criminal law also prohibits anyone from using a false name in voting; or is not a legal voter; or otherwise makes a false statement in signing a petition. Washington statutes also provide a method for voter certification of signatures by the Secretary of State and an appellate process seeking review of the administrative decision on the integrity of ballots or petitions. Plaintiffs filed a Complaint in U.S. District Court seeking an injunction against enforcement of the PRA. In Count I of the Complaint, plaintiffs alleged disclosure of signatories to the petitions violated the First Amendment "because the PRA is not narrowly tailored to to serve a compelling public interest." Count II alleged the PRA is unconstitutional because "there is a reasonable probability that signatories of the petitions . . . will be subject to threats, harassment, and reprisals." In support of that allegation, plaintiffs alleged various groups have "publicly stated they intend to publish the names of signatories on the Internet . . . and have encouraged individuals to contact petition signers to have 'personal' and 'uncomfortable' conversations." The District Court ordered injunctive relief in accord with the conventional test of finding the plaintiff likely to succeed on the merits; likely to suffer irreparable injury in the absence of an injunction; balance of equities in its favor; injunction in the public interest. The State (and other defendants) appealed. The Ninth Circuit ignores the court order for injunctive relief entirely, despite the trial judge's obvious finding the plaintiffs would suffer injury. The Ninth Circuit panel reversed on the ground the trial judge used the wrong legal test for allegations of First Amendment violations. The Ninth Circuit reversed Count I as the District Court had ruled only on that count. After concluding the PRA is subject to "intermediate scrutiny" under First Amendment analysis, the court asks rhetorically what government interests are furthered by the PRA. Twofold, according to the court: to preserve the integrity of the election and "providing Washington voters with information about who supports placing a referendum on the ballot." The court cites no authority for this latter "public interest" and it is patently without precedent. The purpose of assuring the integrity of an election or validity of petitions for a referendum identified in the above statutory requirements is prevention of fraud and assurance no false names or statements are counted in the ballots or petitions. Nothing in the the court's rationale to allegedly "inform the public about who supports the referendum", validates the need for disclosure. This supposed rationale is directly contradicted by the allegations of the Complaint that disclosure is sought to threaten or intimidate signatories, not to inform the public. The court is further confronted with another Washington statute allowing various interested parties to observe the Secretary of State staff processing the names of "qualified voters" who signed the petitions "so long as observers make no record of the names, addresses, or other information on the petitions or related records during the verification process." In other words, the Washington statute specifically prohibits observers of the certification process from recording any names on petitions. According to the Ninth Circuit, this Washington statute is not controlling because the alleged demands for disclosure of "who is qualified" to sign petitions are insufficient to provide "information about who supports placing a referendum on the ballot." But the defendants are not concerned about qualified voters. They want disclosure to fulfill their publicly announced interest to confront signatories. Fortunately, this erroneous judicial Ninth Circuit interpretation of First Amendment Constitutional law and Washington state law has been stayed by the Supreme Court. Buried in the footnotes of Doe v. Reed, the Ninth Circuit panel notes that its decision was stayed by Justice Kennedy who referred his decision to the entire Court-which confirmed the stay. A question: Suppose the plaintiffs were a minority group. They alleged their supporters would be threatened by disclosure. Would the Ninth Circuit issue the same rule as Doe v. Reed? Or this: Assume State legislation mandates proof of identification (disclosure) by voters before voting in an election. The Supreme Court approved that state legislation in Indiana; Crawford v. Marion Co. Election Bd., 533 U.S. 1811 (2008). Had that case been before the Ninth Circuit instead of the Supreme Court, the result would have been different.

Wednesday, January 6, 2010

Appellate Review: U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009); en banc Court Reverses Panel

The summary of this case is provided in a previous entry; June, 2008. The Ninth Circuit en banc court reverses that decision. The en banc majority in Hinkson undertakes the task of reviewing the proper rule of appellate courts when reviewing decisions written by district courts. Because the Ninth Circuit repeatedly substitutes its judgment for trial courts, the en banc court establishes the proper test for review: ". . .The scope of our review limits us to determining whether the trial court reached a decision that falls within any of the permissible choices the court could have made. In other words,. . . the reviewing court must still include some measure of deference to the trial court's factual findings." The en banc court discusses appellate review extensively and is clearly a reprimand to Ninth Circuit decisions reversing trial courts by invoking their own policy decisions.