Wednesday, November 16, 2011

Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011)

In 1979 Schad was convicted of first degree murder and sentenced to death.  His conviction was affirmed by the Arizona Supreme Court, and his state and federal habeas petitions denied in twelve subsequent years. In 2010 the 9th Circuit on habeas corpus reversed the conviction on grounds Schad should be allowed an evidentiary hearing to determine whether he proceeded diligently in his ineffective counsel claim; 606 F.3d 102 (9th Cir. 2010). 

The Supreme Court granted cert., reviewed the record, and in a two line opinion reversed and remanded to the 9th Circuit for reconsideration in light of Cullen v. Pinholster (reviewed in an earlier post). The Supreme in Cullen had reversed the 9th Circuit for ignoring AEDPA 42 U.S.C 2254d (for years) by ignoring its provisions. The 9th Circuit had ignored AEDPA in Schad.

The 9th Circuit rewrote its opinion in accord with the Supreme Court order and denied habeas corpus on the merits and on sentencing.  Some of the 9th Circuit judges (including the ones who wrote the original opinion ) may finally be getting the message.  This decision in Schad v. Ryan is the first time in a decade the 9th Circuit has affirmed a death penalty case. 

Note: This case was decided on November 16, 2011 and decided by the 9th Circuit in 2011. For a 1979 conviction.  The current opinon is the third amended decision rendered by the 9th Circuit, having been reversed by the Supreme Court.

Tuesday, November 8, 2011

Cavazos v. Smith, 132 S.Ct. 2 (2011): 3d Reversal of 9th Circuit

A jury convicted Smith of violating a California statute known colloquially as "baby shaking."  Experts for prosecution and defense testified to the cause of death, obviously disagreeing.  The trial judge denied a motion for new trial, the California Court of Appeal affirmed the conviction, and the California Supreme Court denied review.  On federal habeas corpus, the district court denied the petition.  The 9th Circuit panel reversed, contending the evidence insufficient to warrant  a verdict of guilty. As one of the dissenting judges on the 9th Circuit panel noted, in effect, "why do we have juries?"

The Supreme Court reversed. On remand, without any further reasoning and ignoring the Supreme Court direction to consider other case law, the 9th Circuit reached the same result; on review of that decision in the Supreme Court for the third time, the Justices reversed the 9th Circuit 6-3.
 
This case is one of the most blatant examples of 9th Circuit manipulative jurisprudence. The Supreme Court agreed in this language: "The panel ignored AEDPA . . . Despite the plenitude of expert testimony in the trial record concluding that sudden shearing or tearing of the brainstem was the cause of [the child's] death, the Ninth Circuit determined that there was 'no evidence to permit an expert conclusion one way or the other on that question because there was no physical evidence of . . . tearing or shearing, and no other evidence supporting death by violent shaking . . . The [9th Circuit]  said that the State's experts 'reached [their] conclusion because there was no evidence in the brain itself of the cause of death.' The court concluded that because '[a]bsence of evidence cannot constitute proof beyond a reasonable doubt, the California Court of Appeal had unreasonably applied this Court's opinion in upholding Smith's conviction. That conclusion was plainly wrong."

The Ninth Circuit's assertion that these [State] experts “reached [their] conclusion because there was no evidence in the brain itself of the cause of death” is simply false  (italics added). There was (italics in original) evidence in the brain itself. The autopsy revealed indications of recent trauma to Etzel's brain (the dead child), such as subdural and subarachnoid hemorrhaging, hemorrhaging around the optic nerves, and the presence of a blood clot between the brain's hemispheres. The autopsy also revealed a bruise and abrasion on the lower back of Etzel's head. These affirmative indications of trauma formed the basis of the experts' opinion that Etzel died from shaking so severe that his brainstem tore."
And this by the Supreme Court: "When the deference to state court decisions required  [by AEDPA] applied to the state court's already deferential review, there can be no doubt of the Ninth Circuit's error below. In light of the evidence presented at trial, the Ninth Circuit plainly erred in concluding that the jury's verdict was irrational, let alone that it was unreasonable for the California Court of Appeal to think otherwise . . .  Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State's theory was correct. The jury decided that question, and its decision is supported by the record."

Bluntly stated, the Supreme Court told the 9th Circuit  panel it had misrepresented the evidence, intentionally  ignored the evidence, and abandoned its role as an appellate court.  This case is another verbal lashing the Supreme Court repeatedly administers to the 9th Circuit.

Note: except for the word "was" in the Supreme Court opinion, the italics were added.

Sunday, November 6, 2011

Camreta v. Greene, 131 S.Ct. 2020 (2011); Reversed;, Green v. Camreta, remanded

The plaintiff filed a Fourth Amendment violation and 42 U.S.C. 1983 Complaint against a County human resources employee and a deputy sheriff who interviewed a student on school premises to determine whether she had been sexually molested. The 9th Circuit held that the Fourth Amendment requires police to obtain a search warrant before interviewing a student in school who had alleged a sexual violation, but no liability attached on grounds the officers were entitled to qualified immunity; Green v. Camreta, 588 F.3d 1011 (9th Cir. 2009). The Supreme Court granted cert. on the Fourth Amendment issue only.
The Justices, stunned at oral argument to understand the Fourth Amendment basis for this decision, realized if it refused to decide the case already resolved in favor of the officers by qualified immunity, the principle announced by the 9th Circuit requiring a warrant to seize and search the student would stand. Carving an exception to its general rule in avoiding Constitutional issues unless necessary, the Supreme Court vacated the Fourth Amendment decision, despite the officers having prevailed on immunity, in order to avoid the underlying 9th Circuit rationale to become precedent in this case mandating a search warrant. Camreta v. Greene, 131 S.Ct. 2020 (2011).
On remand, the 9th Circuit insisted on allowing the plaintiff to proceed without the Fourth Amendment issue but could continue its 1983 case; Greene v. Camreta, 2011WL 514333 (9th Cir. 2011.    Without the Fourth Amendment issue, and the defendants prevailing on qualified immunity, there is nothing left to this case.  Yet the 9th Circuit panel remanded the case to the District  Court on the 1983 case, again evading a clear Supreme Court decision and wasting judicial resources.   

Thursday, October 20, 2011

James v. Schriro (Warden), 652 F.3d 855 (9th Cir. 2011

The 9th Circuit will utilize every rhetorical device in its attempt to avoid confirming the death penalty.  Without reciting the brutal facts in this case -even the panel that decided the case conceded that savagely beating the victim, throwing his body down a mine shaft and piling railroad ties on him - was a despicable crime.  But of course, this is irrelevant and a jury, or a judge (under former law) might mitigate the death sentence imposed by considering James' sordid life history.
The problem confronting the 9th Circuit panel required evading the three recent Supreme Court decisions (all from the 9th Circuit) severely limiting federal court review on habeas corpus.  In order to avoid the language  of AEDPA in this case, confining federal court review of a state court adjudication "on the merits," the panel found a procedural device.  If a state court does not provide a consistent procedural rule on habeas corpus, the federal court can review and decide the case without AEDPA limitations.

Arizona state court rules provide that the court will not consider post conviction claims not raised on direct appeal. James did not raise "ineffective counsel" in state court on direct appeal from his conviction nor on his first post conviction review.   That should end it under Arizona rules. No, said the 9th Circuit, the state court has not applied its procedural rule consistently, and the federal court can consider an ineffective counsel claim for that reason.

James filed three post conviction habeas petitions in state court.  The first was denied on grounds he had not raised it on appeal.  The second petition did raise "ineffective counsel" but the Arizona court barred the claim based on the ruling in the first petition.  As was the rule in the third petition.  The 9th Circuit panel seized on the third petition as the last "reasoned decision" of a state court adopting the decision in the first petition and its failure to raise  ineffective counsel on direct appeal

What follows in his federal petition is a pathetic and voluble recital of James' life history and his involvement in drugs. There was no evidence he was under the influence of drugs or alcohol at the time of the crime.  In fact, the series of events leading up to the crime required considerable deliberation and planning consistent with malice.

This case is another example of an unending policy of the 9th Circuit to frustrate the death penalty.  That  a person has faced a difficult and miserable life does not excuse deliberate homicide.

Wednesday, October 19, 2011

Allison v. Diaz, 132 S.Ct. 75 (2011); Reversing 9th Cir. 405 Fed.Appx.123 (C.A.9)

In an unpublished memorandum opinion, the 9th Circuit reversed another death penalty case on grounds of ineffective counsel.  Using the wrong legal test, as it has for years, the court cited insufficient investigation and poor strategy by counsel.

Reversed. The Supreme Court ordered the 9th Circuit  to review its decision in light of Harrison v. Richter, 562 U.S._2011).

This case continues the 9th Circuit record of reversal in death penalty cases using the wrong analysis.  And it has done so for the last decade.

Trunk v. City of San Diego, 660 F.3d 1091 (9th Cir.2011) dissenting from 629 F.3d 1099 (9th Cir. 2011)

The animus to religion by the majority of 9th Circuit judges is evident from their decision in Trunk v. City of San Diego, et al.).  Almost one hundred years ago private parties erected the Mt. Soledad cross in San Diego County to memorialize men who had died in war.  As time passed, approximately 2000 crosses were added to the memorial.  Ultimately the City of San Diego transferred the property to the federal government. At no time in the last 76 years has the location  ever served as the site for religious services.  But apparently some people were offended at this alleged symbol of Christianity and sued to demolish the cross.
In a decision that ignores Supreme Court precedent established in Salazar v. Buono, 130 S.Ct. 183 ( 2010, reversing the 9th Circuit), a majority of 9th Circuit judges held the memorial violates the Establishment Clause  of the First Amendment.

The dissenting judges in Trunk cite two Supreme Court cases directly in conflict with this decision.  The leading case of Van Orden v. Perry, 545 U.S. 677 (2005) upheld the display of the Ten Commandments on pubic property, and concluded the courts must evaluate the use of the display, its context, and the history of the monument.  The undisputed evidence in Trunk established the monument served as a memorial, not the governmental endorsement of religion. The 9th Circuit majority ignored the history of the monument, its use, the absence of challenge in almost a century, and unrelated to any religious practices.

The majority decision  also ignores Lynch v. Donnelley, 465 U.S. 668 (1984), a Supreme Court decision approving display of a creche on public property at Christmas: "Of course the crèche is identified with one religious faith but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Clause.  It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so “taint” the City's exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains - would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution."
The majority decision in Trunk is an "over -reaction." If a creche displayed on public property at Christmas does not violate the Establishment Clause, an unadorned simple cross on a mountain signifying respect for those who sacrificed their lives in war does not either.

Thursday, October 13, 2011

Hrdlicka v. Reniff, 656 F.3d 942 (9th Cir. 2011)

No court interferes more with administration of prisons than the 9th Circuit. The Supreme Court has repeatedly reversed 9th Circuit expansion of prison inmates substantive rights beyond their scope almost as much as its reversals of habeas corpus.

A publisher sought an order directing the Sheriff of Butte County to allow county jail prisoners access to a publication discussing  prison conditions and potential remedies for prisoners.  The majority opinion upholds the right of county jail prisoners to receive unsolicited (junk) mail  from a private citizen. The grounds: First Amendment rights.

Here is the dissent: "The court today holds that the First Amendment mandates that county jails distribute unsolicited junk mail to their inmates, or face a burdensome lawsuit from the junk mail publisher; Turner v. Safley, 482 U.S. 78 (1987).  Given that Turner decided only the standard of review to apply when a prison regulation impinges upon inmates' First Amendment rights, the majority's interpretation is an extraordinary leap since all agree that no inmate rights are at stake in this case. Regrettably, the majority's opinion is completely untethered from Supreme Court precedent and in considerable tension with our own case law. It further complicates the already 'inordinately difficult undertaking' of prison administration."

"Challenges to jail or prison regulations limiting outside contact with prisoners undoubtedly involve the balancing of constitutional imperatives. The majority focuses almost entirely upon those implicated by the First Amendment. But also among them is that running a jail 'requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.' Therefore the separation of powers 'counsel[s] a policy of judicial restraint,” particularly '[w]here a state penal system is involved.”

And finally: "the majority ignores the separation of powers and unnecessarily injects the federal courts into a matter peculiarly within the province of the legislative and executive branches of government (citing Turner).'"

When the delegates from thirteen states met in Philadelphia, they specifically rejected construction of a federal government supervising the states.  The first Ten Amendments to the Constitution all limited power conferred on the federal government. In the 9th Circuit, this mandate is repeatedly ignored although the Supreme Court incorporated some of the Amendments applicable to states. The 9th Circuit manages a broad number of state activities.  Aside from busing, the court supervises county jails, state prisons, schools, and a variety of other categories, imposing its policy decisions indifferent to the rationale of the Constitution.  Hrdlicka represents another duty imposed on county jails to receive, distribute and collect publication of unsolicited junk mail under the 9thCircuit interpretation the First Amendment.

Tuesday, October 4, 2011

Log Cabin Republicans v. U.S., 658 F.3d 1162 (9th Cir. 2011)

The 9th Circuit panel ruling on the enforcement of the military use of a "Don't Ask, Don' Tell" polilcyi was dismissed on ground the lawsuit had been rendered moot by other sources.  Nevertheless, a concurring judge wrote a scholarly and neutral opinion outlining the role of he judiciary in resolving issues of "Due Process."  Elegantly phrased he said this. 
"The [Supreme] Court has imposed  ... dual limitations on substantive due process analysis to preserve the fiduciary's proper role in the constitutional structure. “[E]xtending constitutional protection to an asserted right or liberty interest ... to a great extent[ ] place[s] the matter outside the arena of public debate and legislative action.” (cite omitted). Whenever the Court expands the concept of substantive due process, moreover, it risks “subtly transform[ing]” the liberty protected by the due process clause to “the policy preferences of the Members of th[e] Court.”
      In short, when confronted with assertions of new fundamental rights, rather than invite innovation the Court has counseled caution. The Court has developed a trusted method reflecting that caution. And while the Court has on occasion departed from its established method, it has not licensed lower courts to do so. Most important, when a right is not rooted in our constitutional text, traditions, or history, our authority as judges is at its end. We must then leave the task of identifying and protecting new rights where the Constitution leaves it—with the political branches and the people."
This truncated statement applies to cases previously decided by the 9th Circuit on policy grounds, not Constitutional predicates.  The Supreme Court has repeatedly denounced judicial attempts to expand the role of equal protection and due process not only in discovering new "liberty interests" but in countless other
cases has reversed the 9th Circuit for expanding Constitutional rights. In fact, the Supreme Court reviewed the role of federal courts and the extent of "due process" as early as in a 1997 case reversing the 9th Circuit; Washington v. Glucksberg,  521 U.S.7 02 (1997 ).

Monday, October 3, 2011

Payton v. Cullen (Warden), 558 F.3d 690 (9th Cir. 2011)

For those who oppose the death penalty, here are the facts of a 1980 conviction and sentence: "William Charles Payton raped and murdered Pamela Montgomery in the early hours of the morning on May 26, 1980. She had been stabbed twelve times, six of the wounds in a line from Montgomery's stomach to her groin. After that he repeatedly stabbed Patricia Pensinger with a knife, as well as her ten-year old son Blaine who was trying to help his mother. Pensinger suffered 40 stab wounds to her face, neck, back, and chest; Blaine had 23 stab wounds to his face, neck, and back. They survived. Payton's wife testified that when he got home at 6:15 AM, his clothes, face, and hands were covered in blood."
At no time has Payton argued innocence for a crime commited 31 years ago. Here is the record of the 9th Circuit after conviction: "The California Supreme Court affirmed on direct appeal and on habeas review. People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (Cal.1992). Payton filed a federal habeas petition on May 3, 1996; in two orders, one issued June 1, 1999 and the other December 17, 1999, the district court granted summary judgment for the state on guilt phase claims, and for Payton on a claim of instructional error applying California's “factor (k).” Cal.Penal Code § 190.3(k). Having granted the writ on this sentencing issue, the court did not address the merits of other penalty phase claims—IV(A)(5), IV(C)(1)-(17), IV(D), and V(A)-(D). The parties cross-appealed."
The three-judge panel reversed on the factor (k) issue, and affirmed on Payton's claims that his counsel rendered ineffective assistance in failing to investigate and present evidence about his personal, family, and mental background and to pursue the background of a jailhouse informant during the penalty phase; that prosecutorial misconduct offended due proccess; and that he received inadequate funds to develop defenses and investigate informants. Payton v. Woodford, 258 F.3d 905, 922–25 (9th Cir.2001). The panel also rejected Payton's arguments that his counsel prejudicially failed to develop and present evidence of Post Traumatic Stress Disorder (PTSD) resulting from service in Vietnam, and that his sentence should be reversed for cumulative error. Id . at 925. The case was reheard en banc. Payton v. Woodford, 273 F.3d 1271 (9th Cir.2001) (granting rehearing en banc and ordering panel opinion not to be cited as precedent). The en banc panel reinstated the district court's decision on factor (k), Payton v. Woodford, 299 F.3d 815, 822 (9th Cir.2002) (en banc), applying pre-AEDPA standards. The Supreme Court held that AEDPA applied. Woodford v. Payton, 538 U.S. 975, 123 S.Ct. 1785, 155 L.Ed.2d 662 (2003). Applying AEDPA, the en banc panel again affirmed on factor (k), Payton v. Woodford, 346 F.3d 1204, 1206–07 (9th Cir.2003), and the Supreme Court reversed. Brown v. Payton, 544 U.S. 133, 147, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). On August 15, 2005, the en banc panel remanded to the district court to consider Payton's “remaining claims not already addressed on the merits.”
 On remand, Payton sought to relitigate several issues that the district court (and the three-judge panel) had previously decided. The district court believed that it could rehear previously adjudicated claims, but saw no convincing reason to do so. It addressed the “remaining claims” that had not been resolved, denying each and thus, denying relief on Payton's petition. The court granted a certificate of appealability (COA) on Claim IV(C)(15), which challenges the constitutionality of California's lethal injection protocol."
In 2011, Payton continues to litigate and even now this 9th Circuit decision specifically allows him to challenge the death penalt, its enforcement left dithering in U.S. District Court (Protocol by Cal. Office of Administraive Law approved July 30, 2010; Cal. Code. Regs.tit. 15 ss3349 et seq. (2010).

Jackson v. Ryan, 659 F.3d 1215 (9th Cir. 2011) Withdrawing 2011 WL 3850774 (C.A. 9)

On September 1, 2011 the 9th Circuit panel (3-0) reversed a conviction on grounds the judge issued an improper jury instruction.  Another habeas corpus reversal of a state court. On September 27, 2011 the court issued an order, signed by only two of the three judge panel, as follows:

"The opinion filed on September 1, 2011 is hereby WITHDRAWN. The panel will issue a new opinion in due course. No petitions for rehearing or rehearing en banc will be entertained as to the withdrawn opinion. The parties will be afforded a renewed opportunity to file petitions for rehearing or rehearing en banc after the issuance of a new opinion."
Not any explanation for this unilateral withdrawal.


Although not a precedent, the original opinion was another attempt to avoid AEDPA on grounds of due process.  The Supreme Court has already condemned this practice.

U.S. v. Rodgers, 656 F.3d 1023 (9th Cir. 2011)

The Rogers case illustrates another example of judicial naivete coupled with the inability to properly apply the Fourth Amendment.
The court approved the initial stop of a vehicle at 3:30 a.m. driven by a fifty one year old male accompanied by a young female passenger in a high juvenile prostitution location.  Although the basis for the stop was a vehicle registration violation, later proving not illegal, the officer determined the female's answers to questions by the officer were inconsistent.  Further information revealed an arrest warrant in her name. The officer sought further confirmation of her identity, although the arrest warrant was sufficient, but did not arrest Rogers.
Noting that the female passenger lacked any identification, or any purse or wallet, he looked in the console and found drugs.  Rogers was arrested
Rogers contended the officer lacked probable cause to search the vehicle for identification.  The 9th Circuit panel (2-1) agreed and suppressed evidence against Rogers, an armed career criminal in possession of a firearm (from a previous conviction).
The dissent skewers the majority analysis but fails to explain the rationale of the Fourth Amendment originally decided by the Supreme Court to deter unlawful police conduct. In this case, the officer engaged in extensive conversation with the female, carefully evaluated the presence of a fifty one year old male driving a young female at 3:30 in an area of juvenile prostitution;  His search was not a rummage, but an attempt to determine  the female's age and identity.  No one was arrested prior to the search. No one was personally searched  This conduct is a credit to the offier's capacity to conduct a thorough investigation.  There is not the slightest evidence of conduct consistent with Fourth Amendment rules intending to deter officer misconduct.
This is an other example of the misuse of the rationale for the Fourth Amendment and the consequent release of an armed career criminal.   

Wednesday, September 28, 2011

Comite de Journaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 396 (9th Cir. 2011)

"This is folly." These are the opening words of 9th Circuit Chief Judge Kozinski in his dissent in this case . Incredibly, nine judges in an en banc decision supported the majority decision forbidding the city of Redondo Beach from enacting an ordinance forbidding day laborers to congregate on street corners soliciting employment.  The City submitted evidence that these purported workers interrupted traffic, blocked sidewalks, urinated, and harassed women.  In support of its ordinance, the City copied the same ordinance the 9th Circuit had approved in an earlier decision.  The 9th Circuit panel overruled its previous decision without affording either party any  notice nor did they brief the issue..
According to the majority, the First Amendment applies.  Do we need an explanation of the confusing rules  on free speech to apply to the facts described  above? The majority fears the ordinance might prohibit girl scouts from selling cookies, young children selling lemonade or some other unrealistic alternative.  The ordinance "sweeps to wide."  Yet there is no evidence of any misuse of the statute, and a failure to allow a city to control its streets defies comprehension.  As the dissent points out, this decision allows an unelected federal court to determine whether an otherwise narrowly worded ordinance is unenforceable.
This case is also another intervention by a federal court into an exclusively city matter long considered a municipal function.  The ordinance is in two simple paragraphs, easily understood, and easily applied.  That the City would interfere with girl scouts or lemonade sales is preposterous.
Moreover the plaintiffs challenged this ordinance as facially unconstitutional without any evidence of any discriminatory practices in its enforcement.

Thursday, September 22, 2011

Sivak v. Hardison (Warden), 658 F.3d 898 (9th Cir. 2011)

The facts are set forth in detail to accentuate the inconceivable decision of a 9th Circuit opinion.
"According to her husband, Dixie Wilson left her home around 6:20 on the morning of April 6, 1981, to go to her job at the Baird Oil gas station. By 7:00 a.m she had been stabbed and shot repeatedly. Numerous witnesses testified that, when they found her on the gas station floor, she was breathing faintly and appeared to be unconscious, her “face was all bloody,” and blood was coming out of her mouth. One person noted that “her blouse was kind of up above her breasts,” and another said that her shirt was “pulled way up” so that “she was naked from ... [the] top of her breast down to her pants line.” There was a pool of blood on the floor around her, and a knife blade was lying on the ground. The gas station's money drawer was open, and contained only loose change, and no bills. An empty money bag was sitting out on the countertop.

Wilson was unconscious when she arrived at the hospital, and was declared dead less than an hour later. An autopsy revealed that she had been shot at least five times in the head and face, and the coroner recovered seven separate bullet fragments from her skull. She was stabbed approximately twenty times around the head, neck, and shoulder, as well as on her left hand, which a physician described as a defensive wound. An x-ray appeared to show the tip of a pocketknife blade lodged in her skull, and the tip of a knife blade was recovered from her hair."
A jury found her guilty in 1981, and the trial judge imposed the death penalty.  In 2011 the 9th Circuit panel affirmed her conviction on habeas corpus but reversed the death penalty.  Because this trial and conviction occurred prior to Congressional enactment of AEDPA in 1996, the panel could ignore state court rulings and retry  the case. Although  the evidence was compelling, the prosecution also offered the testimony of two witnesses in custody for other crimes who testified the defendant had confessed to them.
The state court on direct appeal agreed the prosecution had withheld communications between  prosecutors in other jurisdictions indirectly offering these two witnesses consideration in exchange for their testimony.  According to the state court, this evidence had no consequence in affecting the verdict or imposition of the death penalty.The 9th Circuit panel agreed the testimony insufficient to reverse the jury verdict, but did not comment on all the other evidence submitted by the prosecution-including the admission by the defendant that he was present at the time and place of the crime but his friend committed the murder)tried separately and convicted of murder). 
According to the 9th Circuit panel, the trial court might not have imposed the death penalty if it had known the two witnessses were promised leniency in their cases. The court apparently assumes judges are innocent lambs unaware of witness credibility.  One witness testified he was a "chronic liar."  Judges do not live in sheltered towns unaware that witnesses may have a motive to testify, and defense counsel will emphasize the danger of testimony from a witness who is probably going to be rewarded.
Cross examination of the witnesses by defense counsel, and in his argument to the jury not to rely on the testimony of the two witnesses with criminal backgrounds, was heard by the trial judge who undoubtedly intuited prosecution promises.
What rational person who heard the evidence described above would not have voted the death penalty? This vicious, heinous, inexcusable crime warrants the death penalty.  And the 9th Circuit panel says nothing about "mitigation" evidence offered by the defendant to avoid the death penalty.
This case constitutes a 9th Circuit decade of decisions setting aside the death penalty.  The 9th Circuit has not affirmed a single death penalty case in a decade. 

Sunday, August 14, 2011

USA v. Juvenile Male, 131 S.Ct. 2860 (2011)

Reversed again by the Supreme Court, here is the 9th Circuit language on remand: In light of the Supreme Court's decision in U.S. v. Juvenile Male, dated June 27, 2011 this appeal is DISMISSED (Caps. in original) as moot;" 2011 WL 3437508 (C.A. 9).
The 9th Circuit does not give the cite for the Supreme Court case (131 S.Ct. 2860) nor the cite for its own case; 590 F.3d 924 (9th Cir. 2010).  Here is the Supreme Court comment: "The Court of Appeals in this case held that the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.  16901 violate the Ex Post Facto Clause of the Constitution, Art. I, sec. 9 when applied to juveniles adjudicated as delinquent before SORNA's enactment. We conclude that the Court of Appeals had no authority to enter that judgment because it had no live controversy before it."
The Supreme Court reversed this case without rendering any decision on the underlying case decided by he (the Circuit.  In other words, the Supreme Court did not want the 9th Circuit to stand as precedent.

McComish v. Bennett, 653 F.3d 1106 (9th Cir. 2011)

Reversed again by the Supreme Court, here is the language of the 9th Circuit on remand: "In accordance with the mandate of the Supreme Court in Arizona Free Enterprise Club's Freedom Club PAC v Bennett, 131 S.Ct. 2806 (2011) the judgment of the district court is affirmed."  Not a word about its own reversal in the same case, 611 F.3d 510 (9th Cir. 2010). This reversal of the 9th Circuit exceeds any prior year and sets a new record.  And more 9th Circuit cases remain on the docket for the October term of the Supreme Court.

Friday, August 12, 2011

Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011)

In Christian Legal Society Chapter of the Univ. of Cal. Hastings School of Law v. Martinez, 130 S.Ct. 2971 (2010) a 5-4 majority of the Supreme Court held the law school policy prohibiting discrimination based on race, gender, and a variety of other "protected classes" applied to the Christian Legal Society and foreclosed the group from accepting a member who did not subscribe to the organization's religious principles. Other secular groups could impose the same prohibitions, yet the Law School permitted them to use the facilities of the premises although denied to the Christian Legal Society.  According to the majority, the Law School allowed "all comers" to join various groups despite their restrictions except the Christian Legal Society.
The 9th Circuit took up a similar case in Alpha Delta Chi Chapter v. Reed.  San Diego State has an unequivocal, unambiguous and repeatedly established written policy emphasizing diversity and its importance to all students. Almost a "racial preference" policy in tone.  Because the Alpha Delta Chapter mandates compliance with Christian principles as a condition of membership, it encountered the same resistance from the San Diego Administration as in Hasting in using school premises and other "perks" allowed to secular groups.  The Chapter filed suit in U.S. District Court and did not prevail.  The Chapter appealed to the 9th Circuit.

The 9th Circuit panel cited the Supreme Court case above and found nothing wrong with excluding the Alpha Delta Chapter from recognition as an approved student group.  To its credit, on remand the 9th Circuit panel allowed the Alpha Delta Chapter to provide evidence that the San Diego State Administration was applying its policy in a discriminatory manner and ordered the District Court to conduct findings on that issue.

The anomaly of this case: In its student policy manual, San Diego State repeatedly mandates a non discrimination policy applicable to race, gender, ethnicity, sexual orientation, encouraging students to attend any program approved by the administration which does not discriminate. The administration provides various perks" to approved groups.  Lauding its non discrimination policy, its policy presumably would open the doors to anyone on the basis of "status" but not "beliefs."  In other words, the policy discriminates against Christians who foreclose membership from those who do not share their convictions unrelated to their status.. "Beliefs,"not "status," toward a group should allow membership to anyone who shares those convictions.
Note:  On the entire campus only the Christian group is denied recognition by the Administration. In a concurring opinion, the judge notes the San Diego State policy "marginalizes" some students in clear violation of the University exhortation to diversity.  And the record documents the same dilatory conduct of San Diego State personnel as in Hastings in determining approval as a student group.  For skeptics, the administration knows students all will graduate and go away.

Thompson v. Runnel, 621 F.3d 1007 (9th Cir 2011); & Ocampo v. Vail, 2011 WL 2275798 (C.A. 9)

The 9th Circuit will not adhere to AEDPA no matter the verbal lashings issued to it by the Supreme Court.  In its latest term, the Supreme Court reversed  the 9th Circuit panel who had granted habeas corpus in three  state court convictions oblivious to the Supreme Court remonstrating the 9th Circuit for employing de novo review insisted of the limitations imposed by AEDPA.  The 9th Circuit quoted the statute in its decisions and then ignored it.

After the end of the Supreme Court term in July, the 9th Circuit issued two more cases destined for reversal.  In Thompson v. Runnel, seven 9th Circuit judges dissented from a decision in a murder case in which the defendant confessed voluntarily prior to Miranda wantings.   After the officers administered Miranda warnings he confessed again.  According to the panel majority, the police deliberately "delayed" reciting the Miranda admonition in violation of a Supreme Court decision objecting to this practice.  There is no evidence the delayed warning was intentional or deceptive.

The numerous dissenting judges wrote another criticism of the majority panel members.  Under AEDPA, state court decisions are reviewed under Supreme Court law effective  at the time the Justices deliver their opinion.  In Thompson, the Supreme Court delivered its "delayed Miranda" opinion five months after the Washington state court filed its original decision.

Here is the latest test of AEDPA as written by the Supreme Court in Harrington v. Richter, 131 S.Ct. 770 (2011): "As amended by AEDPA,2254 (d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254 (d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement;" cited in Tio Sessoms v. Runnel, 2011 WL 2163970 (C.A. 9).

In Ocampo v. Vail the prosecution admitted statements from an absent witness arguably inconsistent with the Supreme Court decision in Crawford. The absence of the witness obviously was argued by defense counsel to the jury.  The statement was not interpreted by the 9th Circuit for what the witness said but what he did not say.  The jury heard all the evidence, well aware that one of the witnesses was an accomplice whose testimony was impeached.  The jury heard the inconsistent testimony and voted unanimously for guilty.  The 9th Circuit applied its usual reweighing of the evidence and granted habeas corpus although the Washington courts had affirmed the judgment.

Monday, August 8, 2011

Harrison v. Gillespie, 640 F.3d 888 (9th Cir. 2011; Reversing Harrison v. Gillespie, 596 F.3d 551, (9th Cir. 2010)

Harrison v. Gillespie is a perfect example why a governor-or a President of the United States-should not appoint lawyers who have never tried a civil or criminal case, never sat as a trial judge and whose only credential is writing law books.  This describes Mr. Liu whom Governor Brown appointed to the California Supreme Court.  Uninformed as to criminal or civil trial practice, Liu will undoubtedly bring his academic policy choices to the Court and decide cases uninformed by the chemistry of a trial.  

Harrison v. Gillespie, a death penalty case from  Nevada State court, illustrates this prediction.  A jury reported to the trial judge it was at "impasse."  The trial judge questioned the foreman of the jury who reported an inability of the jurors, having voted guilty on the merits, to reach a decision on the death penalty.  The judge questioned the foreman in general terms but did not poll the jury or request the jury to report on the numerical count of their  vote.  Declaring a mistrial, the judge excused the jury.

The defendant appealed to the Nevada courts on grounds the jury was unable to reach a verdict alleging the Double Jeopardy clause of the Fifth Amendment applicable to the states forbade retrial on the unbifurcated penalty phase.  The court rejected this contention.  The defendant filed habeas corpus in U.S. District Court, and the judge denied the petition. Defendant appealed, and a 9th Circuit three judge panel reversed on grounds the judge should have polled the jury.  An en banc court reversed the three judge panel.

The three judge panel had cited a litany of cases in its decision, all irrelevant and unrelated to trial practice.  The Supreme Court has never ruled the trial judge must poll the jury.  Nor has the Court expressed  any formulaic litany for a judge to perform in questioning the jury on their inability to reach a verdict. An en banc panel reversed, noting judges must exercise restraint in speaking with jurors under those circumstances.  Any of their words can be construed as favoring one side, or isolating a juror, or otherwise seeking to compel a verdict.  In the 9th Circuit, no matter what the trial judge says it will lead to a reversal in the event the jury votes the death penalty.

The best practice for the trial judge in "impasse" cases includes initially conferring with all counsel to solicit their recommendations.  Obviously the lawyers will differ.  The court can suggest counsel to document their  objections, or at least place them on the record.  The court must then carefully inquire of the jury foreperson on the general  nature of the impasse without disclosing the numbers for guilt or innocence.  Or the judge may elect to narrowly answer a written question submitted from the jury.

In most cases the personality of the jurors is the cause of the problem. The court should consider the  length  of time in deliberation, the opinion of the foreperson as to the desirability of further deliberations, or some other reasonably based inquiry. Polling the jury is only an option, not a mandate.

The dissent in the en bance decision cites a variety of irrelevant cases.  These cases are fact specific, and the use of common sense is the appropriate rationale.  The dissenting judges, none of whom have trial experience, illustrates its inability to do that. And neither will Judge Liu.
Numerous experienced judges on the Court of Appeal were excellent candidates for the California Supreme Court.  Governor Brown selected an inexperienced law professor who never set foot in a courtroom.

Friday, July 29, 2011

Starr v. Baca, 632 F.3d 1202 (9th Cir. 2011)

In a 2-1 decision a 9th Circuit panel reversed a District Court ruling disallowing the plaintiff to proceed against the Sheriff of Los Angeles County in his individual capacity. The Complaint alleged that sheriff's deputies refused to assist him when he was attacked in jail.  The panel majority, conceding the Supreme Court prevented a theory of respondeat superior liability of government supervisors unless personally involved in an injury to an inmate, and distinguishing the most recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009),  resorts to the doctrine of "deliberate indifference" under the 8th and 14th Amendments applicable to individuals employed by public entities.

The underlying dispute concerns the pleadings alleged in plaintiff's Complaint.  Because the Complaint lists nothing more than a series of Constitutional violations, none including the Sheriff himself, as ably discussed in the dissent, the panel nevertheless reverses and remands on "deliberate indifference" grounds.

The district court allowed numerous amendments to the pleadings, noting the absence of facts and reviewing Supreme Court limitations on pleadings. The dissent quotes from the judge's dialogue with counsel and his explanation for his ruling.

Unquestionably there is some confusion in the sufficiency of pleadings in federal court.  Under its pleading rules, the stricter requirements of state pleadings are abandoned in exchange for a simple statement of facts. Of course this leads to an easy method of filing a case and hoping discovery will yield facts, and results in endless arguments. This practice allows innumerable cases, particularly civil rights, to extort damages from defendants who fear excessive court costs-as the majority concedes.

The case will be undoubtedly be reviewed by the Supreme Court.  Seven judges dissented from rehearing en banc; 2011 WL 4582500 (C.A.9).  

Saturday, July 16, 2011

U.S. v. Gonzalez, 131 S.Ct. 3055 (2011)

For several years the Supreme Court had approved of vehicular searches incidental to the arrest of the driver.  Law enforcement officers had relied on this opinion, and in U.S. v. Gonzales they searched the defendant's glove compartment as an incident of his arrest.  Prior to the search, the Supreme Court had significantly changed the rule, and prohibited warrantless searches of vehicles incident to arrest except under certain circumstances; Arizona v. Gant, 556 U.S. 332 (2009).
The 9th Circuit panel held the Gant rule should apply retroactively in Gonzalez and suppressed the evidence, completely disregarding the rationale of the Fourth Amendment, a judicially invented rule attempting to prevent officers from using duress. The dissenting judge challenged this "reasoning" and wrote a critical opinon disagreeing with the other judges. A rehearing en banc was denied.
On rehearing,here are the three judges response to the dissent:

B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges, concurring in the denial of rehearing en banc [in U.S. v. Gonzalez]:
"Judge Bea's dissent presents a distorted view of what this case is all about. It requires a response that can be part of the public record. Otherwise our panel's reasoned response to the en banc call would remain hidden from public view."
The "distorted view of what this case is all about" apparently did not sit well with the Supreme Court, and the Justices reversed the 9th Circuit without even conducting a hearing citing Davis v. U.S., 131 S.Ct. 2419 (2011). In Davis, the Supreme Court held the officers who were searching in good faith under existing law should not be penalized on grounds the Justices changed the rules. The Justices, citing this rule, reversed the 9th Circuit.
 Yes, the public should know the three 9th Circuit judges named above had ruled improperly, were reversed, and the dissenting judge did not have a "distorted view."  By all means, let's make this reversal of the 9th Circuit panel part of the public record.
Finally, in a non published opinion the per curium court affirmed the District Court denial of defendant's motion to suppress.  No apology for reversal of its  "reasoned opinion" or its censorious snipe at the 9th Circuit dissenting judge.

    

Tuesday, April 12, 2011

City of Reno v. Conn, 131 S.Ct. 1812 (2011)

Fortunately for those who live within the jurisdiction of the 9th Circuit, the Supreme Court reversed that court's opinion in  Conn v. City of Reno, 591 F.3d 1081 (2010) en banc.  Without repeating the facts of that case in their entirety, two police officers arrested a woman who, on the trip to jail, announced she was going to commit suicide.  At the moment, the announcement was ludicrous although she made a futile attempt to do so. Officers took her to a suicide prevention nurse and the City took other steps to evaluate the threat.  Ultimately she committed suicide while in custody.
Her estate sued under a variety of claims and the 9th Circuit majority found the officers liable on a flimsy  Constitutional basis.  Rather then report the court decision, here are the words of the eight dissenting judges: "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;  DeShaney v. Winnebago Co. Dept. of Soc. Servs., 489 U.S. 189 (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."
The State of Nevada sought cert., and the Supreme Court granted the request. The Supreme Court reversed and remanded part of the case (negligent training of officers by municipality (City of Reno v. Conn, 131 S.Ct. 1812. (2011), but in its decision did not reach plaintiff's other claims. On remand from the Supreme Court, the 9th Circuit panel merely reinstated its original decison (591 F.3d 1081 (9th Cir. 2010), vacated the issue of negligent training, remanded  to the district court, and upheld the district court ruling on summary judgment against the City.  The district court may now try the case or hold additional hearings. Another waste of time; Conn v. City of Reno, 2011 WL 404336 (C.A. 9).

Monday, April 11, 2011

Ar.Christ.Sch.Tuition v. Winn, 131 S.Ct. 1436 (2011)

The State of Arizona established a tax credit to any taxpayer who elected to contribute to a school tuition organization of their choice and recognized and approved by the state. The credit applied to secular and religious schools and a taxpayer could decline to seek the credit.  Disgruntled taxpayers alleged an Establishment Clause violation and the 9th Circuit agreed.
The Supreme Court reversed the 9th Circuit (again) and held the state extracted no money from its citizenry and the deduction was voluntary.
In an easy reversal of the 9th Circuit, the Court held the taxpayers who objected to this statute lacked standing to initiate a challenge.  Taxpayers suits have been repeatedly denied on grounds a general objection to tax policy is a legislative issue, not judicial; U.S. Const., Article III.
The Supreme Court again reminds federal appellate courts of the tripartite branch of government and unless the state explicitly applies taxpayer funds to a religious entity the legislative decision is unassailable in court.

Cullen v. Pinholster, 131 S.Ct. 1388 (2011)

Note: this case has been previously reviewed and discussion of the facts and the relevant statutes in the 9th Circuit case are not repeated. The details of the brutal killing described in an earlier blog require no repetition.
Pinholster was convicted of murder and sentenced to death by a California jury and judge in 1984-twenty seven years ago.  The California Supreme Court affirmed the conviction and penalty on appeal, and denied two petitions for habeas corpus alleging ineffective counsel.
The U.S. District Court subsequently held an evidentiary hearing. Pinholster presented evidence never previously submitted to the California Supreme Court, and the trial judge granted the petition upon finding counsel "ineffective." On appeal of the district court decision by the State, the 9th Circuit agreed the court could hear previously unsubmitted evidence on federal habeas corpus. Eight judges dissented.

This incomprehensible rule was jettisoned by the Supreme Court.  The Justices reversed the 9th Circuit (again), enforcing application of 28 U.S.C.2254 (d) (AEDPA), the statutory limitation on federal intervention of state court decisions on collateral review.

In the future, a federal habeas court is forbidden from considering any evidence not presented to a state court on a habeas petition; 28 U.S.C. 2254 (d) (1).  The Supreme Court: "Today . . . we hold that evidence introduced in a federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." And this: "It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."
The Supreme Court also rejected the Ninth Circuit decision that the California Supreme Court improperly ruled on the ineffective counsel claim, citing the seminal case of Strickland v. Washington, (cite omitted). The Supreme Court repeatedly reminded the 9th Circuit that the test for "ineffective counsel" is not based on an independent review of the state court case comparable to ruling on direct appeal but whether its decision was unreasonable under 2254.

The language in Pinholster  should end the repeated attempts by the 9th Circuit to circumvent the law on "ineffective counsel."  

Friday, March 25, 2011

Felkner v. Jackson, 131 S.Ct. 1305 (2011)

In a curt and dismissive opinion, the Supreme Court reversed a 9th Circuit decision of a state court judgment so "inexplicable "and "unexplained" that it required only a unanimous per curiam decision.  The Justices have repeatedly warned the 9th Circuit to review state court judgments in criminal cases on a "highly deferential basis."  All the 9th Circuit wrote in Felkner v. Jackson was a three paragraph reversal without any analysis and absent any reference to the California state court decision.

Felkner v Jackson involved another Batson application on excusing minority jurors.  The 9th Circuit  has embraced Batson and reversed state courts on habeas corpus as early as Rice v. Collins,543 U.S. 333 (2006).  Apparently the judges, most of whom have never tried a criminal case, know nothing about voir dire. Appellate judges reading from a cold record without any understanding of the impression an individual juror presented, and rejecting the decision of the trial judge who supervised voir dire, some of  the 9th Circuit judges view any peremptory challenge of a minority juror as questionable In.....the judge wrote that the decision to excuse a juror was understandable but not the "real reason." This is incomprehensible.

9th Circuit judges who reverse state court judgments are the same almost every time and their decisions predictable regardless of the evidence.  See, Crittenden v. Ayers, 624 F.3d 943 (2010) [earlier blog]

Here is the 9th Circuit opinion referenced by the Supreme Court:
"The Court of Appeals for the Ninth Circuit reversed in a three-paragraph unpublished memorandum opinion. 389 Fed.Appx. 640 (2010). In so doing, the court did not discuss any specific facts or mention the reasoning of the other three courts that had rejected Jackson's claim. Instead, after setting forth the basic background legal principles in the first two paragraphs, the Court of Appeals offered a one-sentence conclusory explanation for its decision:
“The prosecutor's proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors.”
That decision is as inexplicable as it is unexplained. It is reversed."

Sunday, March 13, 2011

Robinson v. Ryan, 595 F.3d 1086 (9th Cir. 2010)

The Ninth Circuit continues its ideological ways in another context.  In a 2-1 decision written twenty three years after the conviction, Robinson v. Schriro/Ryan 595 F.3d 1086 (9th Cir. 2010, the evidence established that in 1987 Robinson and two cohorts loaded shotguns and shells into his truck, and all three drove from California to Arizona at his direction to locate a woman he sought.  The two men forcibly entered the house of two elderly relatives of Robinson's wife, ordered them to lie on the floor, bound their arms and legs, and shot both of them repeatedly in the back, killing the woman and seriously injuring the man who lost one eye.The jury convicted Robinson of murder and voted the death penalty.  The Arizona Supreme Court affirmed the conviction, reciting significantly more evidence in its opinion than the Ninth  Circuit;  State v. Robinson, 796 P.2d 853 (1990).
The 9th Circuit panel engaged in a linguistic analysis over the definition of the words "cruel, heinous,and depraved, "aggravating factors required for imposition of the death penalty in Arizona state courts.  The court wrote "[Robinson] has argued the 'cruelty prong' of the aggravating factors did not apply because the prosecution produced no evidence that the two victims actually suffered significant pain or distress  The panel decided '[t]he cruelty prong of the aggravating factors relate to the physical and mental  suffering of the crime during the murder, and accordingly "there is no evidence of significant pain or distress' suffered by the two victims.
But one victim died while bound with tape on the floor and the other suffered serious injuries.  According to the Ninth Circuit,  forcibly entering a home, ordering the elderly occupants to lie on the floor, binding them, exhibiting shotguns, executing one and seriously injuring the other does not constitute "cruelty."

Sunday, February 20, 2011

Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011)

Appeal from denial of summary judgment denying qualified immunity for defendant police officers and a municipality.

At 1:30 a.m. a police officer driving southbound and stopped at a red light on a city street observed a vehicle northbound. The evidence is in dispute whether the car windows of the driver of the other car were tinted, but according to plaintiff the officer could see each other, and could follow "him with his eyes." The officer U turned, activated his red lights, and followed plaintiff who made a right turn at the next traffic light, then immediately made a left turn  into a parking lot behind a burger stand, parked near a dumpster and turned off his lights.

According to the Ninth Circuit panel, plaintiff was a "designated driver.
  Obviously the officer did not know that.  And the panel noted the driver was an African American as was his passenger and the third occupant a Mexican American.  How the officer could see that at 1:30 a.m through tinted rear windows is not questioned by the panel. And if the driver was the "designated driver" the other occupants must be intoxicated.

Plaintiff testified traffic was light yet he was uncertain whether a police car exhibiting red lights was following him. At 1:30 a.m.

Does the conduct of the driver warrant investigation? Does driving into an unlit parking lot after two contradictory vehicular turns and extinguishing the car lights while hiding behind a dumpster sound innocent?

The panel launches into an extended legal analysis of the Fourth Amendment and conclude the officer lacked a basis to stop the vehicle or arrest anyone.  This case exemplifies the naivete of 9th Circuit panel members who have no experience in "street work" by police. Experience, intuition and conduct warrant investigation.  And the panel could not resist racial identification.

In suppor of its decision in Liberal the panel cites Rodis v. City of San Francisco, 558 F.3d 964 (9th Cir. 2009) and adds "cert. denied."  The Rodis 9th Circuit opinion was originally reversed by the Supreme Court and remanded.   On remand the 9th Circuit panel wrote its decison in compliance with the Supreme Court order.  In Liberal, the panel sites Rodis and adds "cert. denied" ignoring the fact the Supreme Court reversed its original opinion.
.

Saturday, February 19, 2011

Huff v. City of Burbank, 632 F.3d 539 (9th Cir. 2011)

The principal of a high school contacted police and informed them one of the students (Vincent Huff) had threatened to "shoot up" the school, had been absent from school for two days, and many parents had kept their children at home. In talking with the principal, officers were unable to verify the information but decided to visit the home of the student. Upon arrival, one of the officers telephoned Mrs. Huff, identified himself and said he wanted to talk to her. She agreed, opened the door and came out with her son Vincent. Asked by the officers if any guns were in the house, she said she would get her husband and "went" into the house.
The officers, fearing she fled inside to obtain a weapon, entered the house and spoke to the husband for  approximately ten minutes. Satisfied the rumor was not credible, the officers left the house without arresting anyone and without searching.
.
In response to a defense motion for summary judgment, the U.S. District Court found the conduct of the officers reasonable and no violation of the Fourth Amendment occurred .  On appeal, a 2-1 majority of the 9th Circuit panel reversed on grounds the entry was without probable cause, and no exigency occurred warranting entry into the house.

According to the majority, the entry without a warrant violated the Fourth Amendment and no exigency existed to justify an exception to the warrant requirement.  As the dissenting judge points out, the majority "sanitizes" the evidence.  The officer did not testify Mrs. Huff "went" into the house from the outside, she "ran" inside without explanation.  The dissent cites Brigham City v. Stuart, 547 U.S. 398 (2006) for the proposition that officers can enter a house without a warrant if based on "officer safety."

What should the officers have done after hearing from a school principal that one of her students reportedly would "shoot up" the school?  Ignore the unverified information? And if someone did "shoot up" the school, who would be responsible for not investigating?

Considering all the student deaths by gunshot having occurred recently, the most reasonable option for police is questioning the student.  Officers remained outside the house talking to Mrs. Huff and made no entry until she fled inside.  The officers did not threaten her or engage in any conduct warranting flight. Unaware of her goal, the officers could stand outside and hope no one returned with a gun, or enter to prevent any danger. This is common sense and "reasonable" conduct the Fourth Amendment requires. 

The officers remained in the house only ten minutes, neither arrested nor searched anyone, and departed.  In the litigation, (this case arose on summary judgment) how much money should a jury give the plaintiffs?  This is the kind of frivolous litigation that should result in imposition of attorney fees on counsel who filed this case on evidence of nothing more than inconvenience to the plaintiffs.

Friday, February 18, 2011

USA v. Withers, 638 F.3d 1055 (9th Cir.2011)

Note: this case was filed in filed in August, 2010 and amended in January, 2011.  The case does not bear a citation in the Federal Reporter and was not designated for non publication.

Although most of the "ineffective counsel" cases arise on collateral review of state court decisions, the U.S. District Court is not immune from reversal on this ground.  In 1998 a federal court jury convicted Withers of a variety of federal crimes. The district court, on procedural and substantive grounds, denied his habeas corpus petition alleging ineffective counsel, and Withers appealed his conviction to the 9th Circuit.  In his appeal, Withers contended the trial judge closed the courtroom during voir dire thereby denying him the right to a public trial as required by the Sixth Amendment to the Constitution.

The record disclosed that the trial court requested all spectators to withdraw from the courtroom to accommodate jury selection in a case that subsequently lasted eighteen days.  Defense counsel raised no objection to courtroom closure, and on appeal from the denial of the habeas corpus petition his appellate counsel raised no objection.

After the 9th Circuit 2-1 panel skirted all objections to the procedural viability of the petition, it discussed the failure of trial and appellate counsel to raise any objection to courtroom closure.  Citing PressEnterprise Co. v. Sup.Ct., 464 U.S. 501 (1982), the court held the failure to allow the public to remain in the courtroom during voir dire qualified as a violation of the Sixth Amendment right of a defendant to a public trial. Failure of both counsel to raise the issue is "ineffective counsel;" Strickland v. Washington, 466 U.S. 668 (1984).

The dissent noted that no one, neither trial counsel  nor appellate counsel, objected to courtroom closure prior to voir dire.  Moreover, trial counsel made no objection to any error in jury selection either during voir dire or in post conviction proceedings. In any other court, this failure to object constitutes a waiver.

The reason for the 9th Circuit decision in Withers is trial inexperience of the panel majority.  If a trial judge expects a lengthy case, (eighteen days) the number of potential jurors in the courtroom must be enough to survive excusing jurors on the ground of hardship. Accordingly, the trial judge cannot assure enough space for a substantial number of potential jurors and simultaneously accommodate the public. In fact, that is exactly what the trial judge said in court. The lawyers all understand this dilemma and for that reason no one objected.  Nothing in the record supports evidence of courtroom closure after the lawyers completed jury selection.

The majority panel cites Sixth Amendment cases decided by other jurisdictions based on an entirely different sets of facts that conceivably would affect the result of improper exclusion of the public during voir dire. Press Enterprise, relied on by the majority, is unrelated to the facts in this case.

The panel remanded this 1998 case to the district court to conduct an evidentiary hearing.

Thursday, February 17, 2011

Swarthout v. Cooke, 131 S.Ct.859 (2011) /Gilman v.Schwarzenegger, 2011 WL 198435 (C.A.9)

In 2008 the California Supreme Court interpreted the relevant state statutes on parole of state prisoners to require the Board of Prison Terms to grant  parole to an applicant unless the record established "some evidence" the prisoner was "currently dangerous" to the public; In re Lawrence, 44 Cal.4th 1181 (2008); In re Shaputis, 44 Cal.4th  1241 (2008).

The test of "current dangerousness" is obviously subjective.  In addition, the Lawrence case held the original conviction alone cannot qualify as the only basis for the Board's denial of parole. Lawrence and Shaputis  enabled the 9th Circuit to review denials of parole on habeas corpus, and it appeared the federal court would subscribe to California law; Hayward v. Marshall, 603 F.3d 546 92010).

In Swarthout v. Cooke, the 9th  Circuit panel ignored the California Court of Appeals and California Supreme Court decisions upholding the denial of parole to Cooke (and another prisoner, Clay) on grounds  the record contained no evidence of their "current dangerousness," and the State courts unreasonably determined the facts and the law.The Ninth Circuit also found a "liberty interest" violation of Due Process.

In a summary disposition by the Supreme Court, the Justices reproached the 9th Circuit for completely misunderstanding case law precedent; informed the Ninth Circuit no issue of Due Process existed; and the state court decision is not governed by any federal constitutional law or statute. ". . . [R]esponsibility for assuring the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no apart of the Ninth Circuit's business."

The Supreme Court also noted the 9th Circuit had misapplied the parole law in a previous case, Pearson v. Muntz  606 F.3d 606 (2010). In other words, the Court reversed the Ninth Circuit in three cases.

Swarthout v. Cooke assures no further 9th Circuit intervention in state parole issues.

In Gilman the 9th Circuit panel concisely summarizes California parole law in a case holding Proposition 9 (amending sections on eligibility for parole)) does not violate the Ex Post Facto Clause of the Constitution. In holding the Clause inapplicable the panel cites  Dept.  of Corrections v. Morales, 115 S.Ct. 1597 (1995) another case reversing a 9th Circuit decision governing parole hearings.

Wednesday, February 16, 2011

Horel v. Valdovinos, 131 S.Ct. 1042 (2011)

The trial in Peo. v. Valdovinos was extremely difficult for the prosecution. Witnesses were uncertain and in some cases contradictory in identifying the defendant.  Despite the conflicting evidence, the jury convicted Valdovinos, and the state court ssummarily denied his appeal.  The U. S. District Court denied the petition for habeas corpus.  Valdovious appealed to the 9th Circuit.

Reversed. The 9th Circuit reviewed all the conflicting evidence, and discovered the police had failed to disclose a pre trial photo lineup.  The court also found counsel "ineffective under Sixth Amendment precedent."

The Supreme Court reversed the 9th Circuit and remanded for "further consideration in light of Harrington v. Richter, 562 U.S._(2011)."  See, Blog.

Valdovinos is the sixth case the Supreme Court has reversed the Ninth Circuit during the current term of the Court.

Tuesday, February 15, 2011

Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011)

In Brewer v. Landrigan  (See, Blog) the Supreme Court reversed a Ninth Circuit decision staying execution on grounds the FDA had not approved the lethal drug used by the State. In a unanimous per curiam opinion the Supreme Court dismissed this contention in a one page decision not even requring  oral argument. In another decision the Court had approved the death penalty protocol used by Kentucky in Baze v. Rees, 553 U.S. 35 (2008) but Dickens contended the Arizona protocol did not comport with Baze.

In Dickens v. Brewer counsel argued not that the protocol was invalid (indeed he conceded the validity of the protocol) but that nothing guaranteed that Arizona would implement the standards. According to Dickens, past mistakes in executions warrant a prediction of future errors.

The Ninth Circuit panel rejected both arguments.  Dickens presented no evidence that Arizona would use the standards only as a facade.  And every other Circuit Court rejected the complaint that previous errors  in implementing the protocol would not establish  failure or refusal to to comply in future applications of the protocol.

The 9th Circuit did not say so, but to grant a stay on the ground of the possibility of a State's indifference or failure to apply the protocol would prevent an execution at any time in the future.  The U.S. District Court had granted Arizona summary judgment. Affirmed.

Monday, February 14, 2011

Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir. 2011)

The 9th Circuit interferes with state courts not only in criminal cases, but in the management of state facilities as well.  In addition to managing state prisons, the court also supervises county jails.  In Hrdlicka v. Reniff the owner of a publication entitled Crime, Justice & America, distributes the bulletin to county jails.  The publisher requested two county jails (Butte and Sacramento) to distribute his unsolicited publication  to inmates, alleging a First Amendment right of free speech. Both counties denied his request.

The 2-1 panel majority held the publisher had a First Amendment right to send his unsolicited publication to county jails. In support of its opinion, the panel majority cited previous 9th Circuit cases all ordering  prisoners to receive and distribute mail, and. as precedent,  the principle Supreme Court case of Turner v. Safley, 482 U.,S. 78 (1987).  As noted in the dissenting panel opinion, Turner applied to a public forum.  Jail is not a public forum.
Here is the Supreme Court in Turner:  
[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.... Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities.
The majority panel ignores the "deference" and the "restraint" acccorded state courts, and engages in another instance of "structural reform" condemned  by the Supreme Court in Horne v. Flores, 129 S.Ct.2579 (2009).  Every case cited in the majority panel decision approves some form of administrative change requiring additional staffing and time consuming tasks of sorting mail unsolicited by any inmate. See, for another 9th Circuit imposition of jail management of bulk mail, Prison News v. Lehman, 397 F.3d. 692 (9th Cir. 2005)

Sunday, February 13, 2011

Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011)

Several years ago one Paulson filed a Complaint in federal court alleging a "Latin Cross" located on a remote desert property offended him, and its size and location violated the Establishment Clause of the First Amendment (Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002).  After years of litigation, and the 9th Circuit repeatedly ordering removal of the cross, the Supreme Court reversed on procedural grounds and ordered the district court to conduct an evidentiary hearing. (This case was extensively reviewed in an earlier blog); Salazar v. Buono,130 S.Ct. 1803 (2010).

Apparently impatient with the courts, the plaintiff in Trunk v.City of San Diego filed litigation specifically alleging a First Amendment violation despite Supreme Court language in Salazar inferring the Latin cross  did not violate the Establishment Clause.  The Ninth Circuit panel, ostensibly distinguishing the Salazar case, held  the cross violated the First Amendment.

The Ninth Circuit panel wrote a lengthy history of the litigation and cites a litany of its own cases in support of its decision.  The cross was erected in the desert by veterans of World War I in honor of those who died in the war. When the 9th Circuit ordered is removal, the City of San Diego transferred the property to a private owner. Characterized as a "sham" transaction by the 9th Circuit, the property was transferred to the federal government, and Congress confirmed the property as a memorial.  In Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008) the 9th Circuit voided the Congressional finding.  Ultimately, as noted above, the Supreme Court reversed the Ninth Circuit but the Justices did not specifically address the First Amendment issue; Salazar v. Buono.

In Trunk, on appeal from a U.S. District Court ruling sspecifically on the Establishment Clause in favor of the government, the 9th Circuit panel  embarked upon a disquisition of religion and memorials, concluding the Latin cross signified a religious perspective prohibited under the First Amendment. In effect, the panel ordered removal of the cross by awarding summary judgment in favor of the plaintiff-the exact opposite of the District Court order. 

As noted by a dissenting judge in the Kempthorne case, aapparently the seventy years since the veterans erected the cross no one was "offended" until the time of the litigation.

Premo v.Moore, 131 S.Ct. 733 (2011) Part II

On the same day the Supreme Court wrote Harrington v. Richter, 2011 WL 148587 (C.A. 9) Justice Kennedy authored another opinion severely criticizing the 9th Circuit for disregard of the federal statute regulating federal habeas corpus (AEDPA; 28 U.S.C. 2254) and Supreme Court precedent.  The unanimous decision of the Supreme Court suggests a wilful disregard of the statute and Supreme Court case law by the Ninth Circuit.
In Premo, defense counsel entered into negotiations with the prosecutor to plead his client to an offense not requiring the death penalty.  The prosecution had a strong case including a confession by the defendant and two other civilian witnesses.
After the state court imposed Moore's sentence (for an extremely violent and brutal crime) he appealed on grounds of "ineffective counsel" citing the Supreme Court 1986 case of Strickland v. Washington 466 U.S. 669 (1986).  Moore alleged his counsel should have moved to suppress the confession to police.  The state court denied his  appeal; denied a post trial evidentiary hearing in state court; was denied a petition for habeas corpus in U.S. District Court; state court decision reversed in the Ninth Circuit.
Justice Kennedy gave the Ninth Circuit a lesson in trial advocacy and plea bargaining in addition to explaining the proper test for appellate review of state court decisions in federal courts.  He wrote: ". . . strict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel's judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. AEDPA compounds the imperative of judicial caution."
Kennedy concludes by stating: "When 2254 applies, the question is not whether counsel's acrions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Stickland's deferential standard."

Comment:  The Ninth Circuit has a long history of reversing state court decisions by employing the Strickland case. Harrington v. Richter and Premo v. Moore may end a litany of wrong decisions written by the Ninth Circuit, most recently in Knowles v. Mirzayance,  and Wong v. Belmontes.

Premo v. Moore, 131 S.Ct. 733 (2001): (Part I)

On the same day the Supreme Court reversed the Ninth Circuit in Harrington v. Richter, 2011 WL 148254 C.A.9) the Justices also reversed Premo v. Moore.  In a plea bargain, Moore had pled guilty to a charge of second degree murder in an Oregon state court. Denied post conviction relief in state court on grounds of "ineffective  counsel," Moore  petitioned the U.S. District Court to issue a writ of habeas corpus. Moore again alleged "ineffective counsel" occurred prior to his plea based on failure of his lawyer to object to his confession to police officers.  On appeal from the district court ruling, the Ninth Circuit panel extensively wrote on the importance of confessions in criminal cases, and failure of counsel to object constituted "ineffective counsel."
The dissenting judge in the Ninth Circuit decision skewers this principle.  No one doubts the importance of a confession, but under Ninth Circuit reasoning defense counsel must file every motion, frivolous or not, prior to any plea.  The prosecution is unlikely to engage in any plea bargaining under those circumstances. Oregon sought review of the Ninth Circuit decision in the Supreme Court.
Reversed. The Supreme Court verbally lashed the Ninth Circuit again, explaining the role of plea bargaining in criminal cases and the irrelevance of the need for counsel to file a every motion to exclude evidence prior to trial in order to avoid criticism of "ineffectiveness."  As the Court notes, an appellate court on a cold record cannot intuit the nuances of "plea bargaining, i.e., whether the prosecution has a strong case or not; whether witnesses other than a police officer can testify to a confession; the strength of an alibi; the testimony of accomplices; the trial/ sentencing judge; the likely composition of a jury.  The list of problems for prosecution and defense is endless...
And the most important factor for defense counsel: the death penalty.  Moore had attacked the victim, bound him with tape, threw him in the trunk of a car and eventually killed him.  These facts are sufficient to warrant the death penalty after a trial.  Defense counsel received a reasonable offer from the prosecution for reasons unknown on the record.  But if the defendant refused the offer, the prosecution would continue investigation in an attempt to strengthen the case, and the potential of seeking the death penalty loomed.
Again the Supreme Court explains the role of the Anti-Terrorism statute (AEDPA; 28. U.S.C. 2254) and reproaches the Ninth Circuit for mis interpreting the statute and Supreme Court case law.   
Supreme Court case law. See, discussion of AEDPA in Harrington v. Richter.
The most important part of the case is the Supreme Court explanation of the role of federal courts in reviewing allegations of its leading cases on ineffective counsel; Strickland v. Washington, 466 U.S. 668 (1984).  Federal appellate courts reviewing state court decisions on habeas corpus cannot undertake its own interpretation of Strickland and the effectiveness of counsel.  The court must concede to a state court ruling. and issue the writ only if the state court interpretation is unreasonable, and not interpret Stickland de novo.

Monday, February 7, 2011

Harrington v. Richter, 131 S.Ct. 770 (2011)

In an emphatic and harsh review of the case in Harrington v. Richter, the Supreme Court again reprimanded the Ninth Circuit for its failure to abide by Congressional rules enacted in the Anti Terrorism & Effective Death Penalty Act restricting federal collateral review of state court decisions in criminal cases (AEDPA; 28 U.S.C. 2254). In a unanimous decision written by Justice Kennedy, he criticized the Ninth Circuit's refusal to apply the Act and the appellate court's failure to apply Supreme Court precedent.

Justice Kennedy intially dismisses the Ninth Circuit decision holding that on habeas corpus review of state court decisions the federal court applies a de novo standard in the absence of any written opinion issued by the state court.  AEDPA neither requires written opinions nor does Supreme Court precedent, and every other Circuit Court has rejected the Ninth Circuit interpretation. AEDPA permits  a federal court to reverse a state court decision on habeas corpus only if it finds an unreasonable application of Supreme Court law or an unreasonable interpretation of facts whether the state court writes a decision or not.

At its core, Harrington is an "ineffective counsel" case.  The Ninth Circuit had criticized the defense lawyer who had not submitted evidence of a blood sample found at the scene of the crime but otherwise effectively cross examined witnesses and presented a reasonable defense to the crime of murder.  Justice Kennedy administers another lesson to the Ninth Circuit on trial advocacy. 

The seminal case of "ineffective counsel" is Strickland v. Washington, 466 U.S. 668 (1984 ) a case invoked repeatedly by the Ninth Circuit in previous cases when the court is unable to find any other reason for reversal.  Kennedy skewers the Ninth Circuit application of Strickland, and writes "the pivotal question in determining whether counsel was ineffective] is whether the state court's application of the Strickland standard was unreasonable [under AEDPA.] This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of 28 U.S.C. 2254(d) 'an unreasonable application of federal law is different from an incorrect application of federal law' (citation omitted). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself."

Tuesday, January 25, 2011

Rodriguez v. Maricopa Comm.Coll. Dist., 605 F.3d 703 (9th Cir. 2010)

"Political correctness" continues to thrive, particularly in the academic community. A professor of Maricopa Community College sent several emails through the faculty mail service commenting on the superiority of Western civilization and decrying the emergence of a nation of two people. Other messages were similarly empathic in its criticism of non white cultures. The emails were received by district employees but not students. Eventually, critics of these messages complained to the chancellor and administrative staff. To their credit, they refused to stifle the mail although they reminded students and faculty of the importance of respect for opposing views.
Most cases in state and federal court involve dissenters of the status quo, government in general and law enforcement in particular. The courts have forcefully protected the right of citizens to criticize public and private entities despite their distasteful ideas. In the case of Rodriguez v. Maricopa Co. Community College School District et al the dissatisfied students sued the college alleging the emails caused workplace harassment and employment discrimination under the Equal Protection Clause and Title VII. The District Court somehow certified a class action (consolidation would have been sufficient) and refused to grant qualified immunity to the administration.
That a district court judge would issue an order to certify a class and simultaneously deny immunity to staff who understood the meaning of the First Amendment is incredulous. In a well reasoned decision the Ninth Circuit panel reminds readers that in the absence of any workplace harassment or denial of Equal Protection ja cause of action (or claim) is not actionable under the First Amendment. Title VII and the Equal Protection Clause require conduct to justify judicial intervention. To shut down this professor because he espoused "politically incorrect " views would deny any faculty member from expressing opposite views. The Equal Protection Clause and Title VII require "conduct." The First Amendment prohibits "viewpoint discrimination," the consequence in this case of preferring some other message than that of the professor.
Many people would like to suppress speech they dislike. Absent a threat, or slander, or conduct causing an unlawful assembly, democracy requires tolerance of disparate views. Apparently the Maricopa staff understood this concept and it refused to verbally strangle or impose administrative punishment. The Ninth Circuit agreed and reversed the District Court judge.
Lopez v. Candaele, 2101 WL 5128266 (C.A. 9)
In the Rodriguez case the voices attempted to stifle a professor who expressed views distasteful to some students, but in Lopez the professor attempted a similar result with a student. Johnathan Lopez was a student at Los Angeles City College enrolled in a class taught by a professor Matteson. The professor assigned a writing project to his class, and Lopez wrote an essay criticizing homosexuals. Matteson read the essay in the class and called Lopez a "Fascist bastard," refused to allow Lopez to finish his speech, and asked anyone who was offended to leave the class. No one did.
Matteson spoke to Lopez and told him to "ask God what his grade was."Lopez contacted school officials who required him to submit his complaint in writing. Matteson told Lopez of his intent to expel him.
The administration, again to their credit, although in response to letters from counsel for Lopez, undertook an investigation of the case and intimated Matteson’s conduct would be evaluated. Lopez filed a lawsuit under Title VII alleging violation of his First Amendment rights.
The Ninth Circuit panel held Lopez lacked "standing" although two lesbians offended by the Boy Scouts use of public land (which they leased), and some wilderness person whose view of the park was obstructed by a Park Service proposed land improvement, had "standing."
That a publicly paid teacher would intimidate a Community College student in front of his classmates is inexcusable. This conduct, accompanied by numerous reports reflecting the voter registration of college professors, and the refusal of UCLA to allow tapes of their lectures, confirms the ideological spectrum on college campuses.