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.
Tuesday, August 31, 2010
Friday, August 6, 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.