Arrested, tried, and convicted for a  a major robbery spree committed by Frost in 2003, (thirteen years ago) he was tried in state court, and the overwhelming evidence convinced the jury of his guilt. On appeal in state court, the justices denied his argument of “structural” error at the trial. Frost argued the trial court had refused to allow his counsel to argue the prosecution had not established its burden of proof, and, in addition he committed the robbery under duress. This inconsistent argument to the jury was denied by the trial judge whose decision was upheld in state court, and in federal district court, invoking habeas corpus. On appeal to the 9th Circuit, Frost argued the same “structural error.”  Denied by the three judge panel.  Reversed on en banc. Cert by the state granted..

The Supreme Court reversed the 9th Circuit in a short per curiam opinion and specifically criticized the 9th Circuit. On remand,the 9th Circuit panel arrogantly considered different legal argument: had the defendant been “prejudiced” by the trial court?  Fortunately, despite its insolence, the 9th Circuit  affirmed the conviction .

Some judges of the 9th Circuit are determined to ignore the Supreme Court and common sense.  The evidence in the Frost Case was overwhelming.  Frost even testified he was “under duress.”  The jury obviously disagreed.  Why reverse a jury verdict with a technical issue the jurors would have ignored?  When will the Supreme Court divest the 9th Circuit in habeas corpus cases?

The Supreme Court reverses the 9th Circuit more than any other federal court, and the current term will duplicate that record.  But in the 9th Circuit’s latest case some of the “usual suspects” try another device to avoid the death penalty as they did in Schad v. Ryan.  That case is an embarrassing rendition of “appellate abuse” described by the Supreme Court.  The 9th Circuit panel ignored the mandate of the Supreme Court denial of Schad’s petition for certiorari.  Instead, the 9th Circuit panel returned his case to the district court for further hearings. That 9th Circuit decision is not a case of negligence; it was a defiance of the Supreme Court intentionally rendered.

The 9th Circuit has done it again.  Ryan v. Henry is willful appellate defiance of federal rules of procedure.  The mind numbing rendition of the procedural history of the case is an attempt to once again subvert a death penalty decision. The Supreme Court had denied Henry’s petition for certiorari on an issue of alleged structural error in the trial court and his appeal denied by a 9th Circuit panel. Henry petitioned for a rehearing of  the result and sought reconsideration of the en banc hearing.

Granted- in violation of 9th Circuit rules- the panel reheard the petition in conjunction with a related case.  In a final decision by the Chief Judge, he denied the petition to stay the proceedings until the related case  was decided. The unrelated case (with similar issues) was consolidated, argued and the court ruled the stay in Henry was decided.

In this thirty year old case, Henry only argued the penalty.  Factual innocence was never an issue.

Another reversal of the 9th Circuit, and we are only two weeks into the current term of the Supreme Court. The Justices have already reversed five cases.  The Glebe decision is per curiam by (all members of the Supreme Court).

The defendant Frost began a series of robberies eleven your ago along with other men. At the trial he admitted participation in the robberies. Tried and convicted of the robberies and other related crimes, he appealed to the Washington Supreme Court who affirmed the conviction.  Frost filed a habeas petition in federal court and was denied.  On appeal to the 9th Circuit; the panel affirmed the order but on en banc hearing: reversed.

Frost claimed the trial judge would not let him argue failure of the trial court to allow him to argue the state did not establish corroboration of the accomplices who testified against him, and that he committed the robberies under duress.  How you can argue the absence of corroborating witnesses to committing the crime and contend you were under duress is a good question.

According to the 9th Circuit, the trial court erred in failing to allow counsel to argue inconsistent defenses. On cert., the Supreme Court did not address this question because the 9th Circuit en banc panel used their own precedent to determine whether AEDPA had been applied without any “clearly established” Supreme Court law as fully discussed in the recently decided Lopez case. The Supreme Court informed the 9th Circuit (again) it cannot rarely on its own precedents.

But the main issue revolved around the trial court decision whether refusing to allow inconsistent defenses constituted “structural error.”  Most Constitutional errors warrant reversal only if the the error is harmless.  Structural error “must infect the entire trial process and render it unfair.” In reviewing the trial record the Supreme Court concluded no infection of the entire trial process rendered it unfair, particularly when testified to his commission of the crimes (but under duress).