Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012)

Phillips was convicted in 1977. After the California Supreme Court affirmed his conviction, he filed habeas corpus in federal court.  Denied by the District Court judge, the 9th Cricut reversed and ordered an evidentiary hearing. The District Court held a hearing and filed a 61 page order denying the petition.  On appeal, a 2-1 panel majority of the 9th Circuit reversed on the most unjust, speculative and specious grounds possible.

The evidence established Phillips lured two men to a deserted location, incapacitated both, and set them on fire.  When Phillips discovered one man still alive, he shot him five times and ran over him with his car.
One Coleman,  a female aacquaintance of Phillips, and present at the scene, testified to the events in addition to the victim who had been set on fire.  The victim, an eyewitness, testified dramatically to the event and was corroborated by the female accomplice.

The accomplice received the benefit of prosecutorial largess but the prosecutor did not reveal the secret deal he had arranged with her counsel.  According to the majority, this failure of potential impeachment spared the defendant from a finding of murder with special circumstances related to robbery, and set aside the death penalty thirty five years after the verdict.

The dissenting judge skewers this outrageous opinion.  He reminds the majority this case is a collateral proceeding entitled to a state court presumption of correction in its decision.  The California Supreme Court affirmed the verdict specifically rejecting the ground of the majority opinion.   As did the District Court.
The jury heard the eyewitness testimony of the victim shot five times, set on fire and run over by a car.  The defendant lured both men into a deserted location, urging them to bring money.  The victim testified the defendant took his wallet.  That is enough for felony murder.

The majority focuses on the failure of the prosecution to disclose it had arranged sentencing benefits for the  woman, although she testified she expected “consideration” for her testimony, but no one had informed her of any grant of immunity or leniency.  Assuming the prosecutor did not disclose potentially impeaching evidence, the defense counsel at trial argued she must have some kind of reason for testifying as a witness rather than a co – defendant.  The judge instructed the jury to assume “distrust of an accomplice.” And the defendant testified to to an alibi that was proved to be a lie.

This case is another illustration of a judge manipulating the testimony, engaging in speculation, and assuimng the jury is composed of idiots.  The evidence is overwhelming but somehow this judge must defer, or prevent, the death penalty.   The dissenting judge  barely restrains his anger at this indefensible decision by the two judge majority.  This case will go en banc.