A 2-1 opinion in a case that defies understanding-not that it is the first one the 9th Circuit judges have written. In a bench trial, the judge found the defendant guilty and scheduled a sentencing hearing.  On the date of the hearing the defendant substituted out his lawyer and retained new counsel.  Because new counsel had not appeared, the court ordered substituted counsel to stay in court for the allocution by the victim.

Federal law allows victims of a crime to testify at the sentencing and describe the extent of harm or damage inflicted by defendant’s conduct.  No cross examination allowed, the hearing not subject to impeachment, and no limit on the extent of the damage.  The victim testified while former counsel remained-even though not representing the defendant.  New counsel appeared and remained present for the rest of the hearing.

According to the majority, the Sixth Amendment mandates the right of a defendant to counsel at trial, and sentencing is part of the trial.  Absence of counsel representing the defendant is grounds for reversal and two judges on the  panel vacated the sentence and remanded.

As the dissent points out, what does defense counsel do at an allocution hearing other than listen.  The trial  judge, in the interest of the defendant, asked substituted counsel to remain while the victim spoke to assure no error occurred. What did substituted counsel do?  Just sat there and listened.  If some kind of error occurred, former counsel could discuss it with new counsel or get a copy of the transcript.  What is there to do?  And new counsel made no objection to the trial court decision allowing the trial court practice.

This decision is another example of wasted judicial time in the  context of a perfectly satisfactory hearing that would warrant no objection to an allocution.  The dissent could not understand the majority opinion for the “life of me.”  Neither could anyone else.

Several judges on the 9th Circuit who have never tried a criminal case apparently are completely unaware of the cost and injustice of some of their opinions. The author of Taylor is in that group.

Taylor was convicted in state court of shooting and killing a store clerk in a two-man robbery.  The prosecutor could not establish which of the two men did the actual shooting and informed the jury the non shooter was an aider and abettor and as guilty as the principle.  The jury found Taylor was the shooter, and the court sentenced him as the principle.

Somehow, the DA and police subsequently discovered Taylor was not the shooter and the jury had made a mistake.  This commendable prosecutorial investigation was administratively opened and eventually the prosecutor and trial judge agreed to a reduced sentence. Taylor filed this procedure for review in the California Court of Appeal on grounds of erroneous sentencing, and on denial by the court he sought review in the California Supreme Court  The Supreme Court in its order referred only to resentencing, not the grounds Taylor alleged as “not guilty” as a principle. Remanded to the Court of Appeal.

The California Court of Appeal on remand affirmed the judgment of the trial court; the California Supreme Court denied review; the federal magistrate denied the petition for habeas corpus in district court.  The 9th Circuit panel granted the petition in an incomprehensible opinion.  When 9th Circuit judges want to reach their ideological opinions, they find their way and always for the defendant.  Taylor v. Cate is deja vu all over again.

According to the 9th Circuit majority panel, the California Supreme Court order only applied to resentencing, not Taylor’s claim on the merits that the jury had not found him guilty as an aider and abettor, avoiding AEDPA, and on remand the California Court of Appeal held only the resentencing was approved. Now the panel could review de novo.

What better and fairer resolution of sentence reduction could be found anywhere except in the 9th Circuit?  The panel ruled the jury had never convicted Taylor as an aider and abettor and he must be retried.  In the meantime, the other robber was found not guilty. This case was tried in 1987 and now both men are free unless the prosecutor can find witnesses to retry Taylor as an aider and abettor. He would be sentenced, if found guilty, to the same sentence the DA recommended and the trial court approved.The defendant was found guilty as a principle but the sentence is higher than for an aider and abettor.  Both are treated equally for purposes of conviction, and Taylor should be sentenced as an aider and abettor. Which the trial court did.

The majority panel writes that the sentencing error is not harmless and deprives the defendant of a trial as an aider and abettor under the Sixth Amendment and Due Process Clause.  The author of the panel cited a 9th Circuit case reversed by the Supreme Court in support of her decision.

The dissent seeks an equitable decision.  If the DA cannot re try this 1987 case because witnesses cannot be found, both defendants go free.  What an injustice. The trial court understood.  The DA was oriented to justice in agreeing to a reduced sentence.  All the California courts and the federal court agreed. En banc time, and if denied, petition for cert. alleging another 9th Circuit error to add to their record.