HIdden away in a tiny sentence of the Daily Journal newspaper (California), the 9th Circuit panel wrote “in accord with the Supreme Court’s opinion of June 3, 2013 as well as the resulting judgment . . . the district court’s denial of Jackson’s habeas petition is AFFIRMED (caps in original). This sentence infers the 9th Circuit affirmed the district court – which had denied the petition for habeas corpus. The 9th Circuit panel had reversed the district court denial and granted the petition. The Supreme Court is reversing the 9th Circuit decision written in Jackson v. Nevada, 688 F.3d 1091 (2012). Another fact omitted by the panel.
The facts in this case of sexual assault are undisputed for purposes of this blog. After Jackson’s conviction in a Nevada state court, and the judgment affirmed on direct appeal, he filed a habeas corpus petition in federal court alleging the trial court had refused to accept written evidence that the victim had recanted her accusation of rape and fabricated the evidence. (She testified to having been threatened). In addition, the defendant had sought to submit evidence that the victim had reported prior allegations of sexual abuse by the defendant but the police could not find corroborating evidence. The trial judge allowed cross examination on these issues but would not admit extrinsic evidence on grounds the Nevada statute does not permit evidence of “conduct to prove character.”
The U.S. District Court denied the habeas petition. On appeal, the 9th Circuit panel found a Sixth Amendment Confrontation Clause excuse when the trial judge prevented the defendant from providing a defense by refusing to permit extrinsic evidence to “balance interests.” The panel granted the petition. On certiori, the Justices unanimously reminded the 9th Circuit in a per curiam opinion that none of the Supreme Court cases holds this position, and the vast majority of states refuse to allow “conduct to prove character” evidence to avoid diverting jurors from focusing on collateral issues at trial.
Jackson hardly qualifies as a benchmark case. Aside from burying its reversal in one misleading sentence, the 9th Circuit attempts to “Constitutionalize” cases and stretch the law beyond its boundaries. The Supreme Court has reversed the 9th Circuit repeatedly, including one case asserting the appellate court had “abused its discretion.” The 9th Circuit evades AEDPA, formulates a liberal immigration policy, writes innumerable reversal of death penalty cases, and holds an anti law enforcement bias. Most of these judges have never tried a case and know nothing about trial practice. Appointing judges with no trial experience produces opinions comparable to some of those on the 9th circuit.
Not all judges of the 9th Circuit write controversial opinions, and their dissents are as scorching as those of the Supreme Court. And the Supreme Court in Jackson reminded the 9th Circuit of its wrongful appication of AEDPA. Again.