Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2012)

Another 9th Circuit reversal of a death penalty case by a 2-1 majority panel. The case was tried in 1979.

Despite the harsh language of the Supreme Court in a recent series of cases reversing the 9th Circuit, the rebukes go ignored in Gonzalez and the case serves as another request for an en banc hearing and, if denied, a petition for cert. to the Supreme Court. The 9th Circuit majority panel cites AEDPA, U.S.C. 2254, concedes the Supreme Court cases have insisted on federal courts discontinuing second guessing state courts, and then ignores the statute and the Court precedents.

Sheriff’s deputies served a search warrant on a house occupied by Gonzalez.  When he refused to open the door, the officers forcibly entered and confronted Gonzales who held a shotgun.  He fired and killed one officer.  At trial, Gonzalez conceded shooting the officer but contended he thought a gang member was attempting  entrance.  The only issue at trial and on appeal was whether he knew he had shot an officer.

The California Supreme Court upheld the conviction but ordered a reference to determine certain facts, i.e. whether the prosecutor concealed evidence of impeachment.  Ultimately the court denied his claim;
the U.S. District Court denied the petition for habeas corpus. Gonzalez contended one of the prosecution witnesses who testified against him had a  physcological history not disclosed to the defense.  At trial, the witness conceded he had been convicted of murder, had lied and had manipulated the prison system.  Even the majority opinion conceded he had been thoroughly  impeached in front of the jury.  Nevertheless, despite the state supreme court opinion,  the discovery reference ordered by that court, and the denial of the petition by the district court judge, the 2-1 majority held the phsycological history not disclosed by the prosecution violated the Brady rule (prosecutors must disclose exculpatory or impeaching evidence to the defendant prior to trial) and warranted reversal.

In support of its decision the majority cited a dissenting hypothetical opinion in Cullen v. Pinholster, 131 S.Ct., 388 (2011)  in arguing Gonzalez only discovered the evidence after the state court had ruled in his case.

This decision is a travesty.  Apparently the 2 judge majority never tried a criminal case and ignored the jury allocation of evidence.  The jury knew the witness was convicted of  murder, lied and manipulated the prison system.  In effect, thoroughly  impeached.  What did additional psychological evidence establish? The concurring opinion is an exercise in verbal hash, endlessly trying to justify its decision.

This is a simple case.  Did the defendant know the forcible entry was initiated by officers or gang members?  The jury heard all the  witnesses, understood the defense and convicted the defendant.  The majority cites almost no other evidence in the trial other than the testimony of the tainted witness. This case is another “second  guessing”of state courts.   

As usual, the majority cited AEDPA and ignored it.