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.