The 9th Circuit panel who wrote this opinion have renamed the court.  They are now the 9th Circuit trial court. And the opinion is written by the usual suspects who have never tried a criminal case.  Not only did the panel re try the case on habeas corpus and ignore AEDPA, they brilliantly know more about the case than the California Court of Appeal, the California Supreme Court (and the U.S.District Court judge who denied the petition for habeas corpus) who heard the case on direct appeal and affirmed the verdict of “guilty.” 

This case involved a gang homicide so the prosecution called questionable witnesses (the kind you get in gang cases) who changed their testimony in some instances.  And of course the panel thought the jury was unaware of this after listening to the testimony of all the witnesses, observing their demeanor and considering the argument of defense counsel-the same argument he made to the 9th Circuit panel. The panel heard nothing from any witness, saw no witnesses, and knows nothing about the case except from reading a cold record. The jury decided the case having considered all  the evidence presented at trial and unanimously found the defendant guilty. Not in the 9th Circuit.  They liked the defense better-as in the Smith case reversed three times by the Supreme Court. 

Defense counsel tried to establish a third person had committed the crime, and produced enough evidence to convince the jury his client was not guilty. The jury made the decision in favor of the prosecution but the 9th Circuit panel explained why jurors made a mistake. 

Part of the evidence linking Aguilar with the murder consisted of testimony from an expert witness explaining results of a dog scent test. Subsequent to the homicide, police had removed clothes from an impounded white car matching a description by eye witnesses who testified the male driver had exited the vehicle, shot the victim and fled.  According to the expert witness, the test of the clothes found in the car was positive in identifying Aguilar as an occupant of the vehicle, but the prosecutor failed to disclose evidence that the dog had been previously mistaken in an unrelated case.  That information had been brought to the attention of the District Attorney but the test results had not been revealed to defense counsel in the Aguilar case.

Police found no fingerprints in the white car and the prosecutor could produce no forensic evidence resulting from a search of Aguilar’s dwelling. Although the prosecutor submitted the vast majority of the testimony of other witnesses, who admittedly conflicted, he argued to the jury the importance of the expert witness who testified to the results of the dog scent.

Obviously the failure of the prosecutor to provide defense counsel with evidence of a prior mistaken dog scent in a criminal case violated the Brady rule. Whether failure to disclose exculpatory evidence is sufficent to void an otherwise error free trial is arguable, but that is not the test.  On habeas corpus the Supreme Court has repeatedly lashed the 9th Circuit for ignoring AEDPA, and that is precisely the issue in Aguilar. This case is a gross misinterpretation of AEDPA. and its statutory demand of deference to state court decisions.

The jury listened to all the witnesses and were fully cognizent of the inconsistencies in testimony.  The jurors concluded the defendant was guilty and there is sufficient evidence to support that decision. The California Court of Appeal and California Supreme Court read the same record as the 9th Circuit judges, and the state court opinions are not “unreasonable” under AEDPA.  Disagreement by an appellate court opinion on habeas corpus under AEDPA is irrelevant.

The Aguilar case should be reheard or, if denied, reviewed on cert. to the Supreme Court.

Incontrovertible evidence established Schad had strangled the victim breaking his neck, stealing his car, and using his ATM card to buy jewelry.  At the time of his trial, Schad was on parole for similar conduct committed in a previous case.  Convicted in the instant case in1979 and his conviction and sentence affirmed on appeal by the state court –  including denial of a claim for ineffective assistance of counsel- Schad filed a habeas petition in federal court.  Petition denied but reversed on appeal by the 9th Circuit; that decison was reversed by the Supreme Court and remanded.  Schad’s subsequent attempt to set aside the conviction again succeeded in the 9th Circuit, and again  the Supreme Court reversed, remanded and ordered the 9th Circuit to reconsider in light of Cullen v. Pinholster, 131 S.Ct. 2388 (2011).

In Cullen v. Pinholster the Supreme Court court had verbally lashed the 9th Circuit for allowing evidence in a federal habeas petition never previously presented in state court.  This 9th Circuit practice had become applicable in numerous of its criminal cases.  In most instances, the state court had committed no legal error at trial or on appeal , and the petition alleged ineffective assistance of counsel. The 9th Circuit permitted petitioners to introduce entirely new evidence on federal habeas The Supreme Court wrote Cullen to terminate this egregiously unfair practice.

After remand in Schad, the majority 2-1 panel affirmed the conviction and sentence 671 F.3d 708 (9th Cir. 2011) but later, on its own initiative, reconsidered this decision affirming the state court and the corresponding denial of habeas by the district court.  The panel justified its “reconsideration” based upon an unrelated Supreme Court case permitting a habeas court to hear and consider allegations that defense counsel failed to provide effective assistance of counsel and, as a consequence, the petitioner did not procedurally default in state court. Martinez v. Ryan,  132 S.Ct. 1309 (2012). Despite repeated comparable habeas allegations denied in state and federal courts alleging ineffective assistance of counsel, the panel considered “new evidence” to establish no procedural default had occurred.

The majority opinoin is so clearliy a brazen and deplorable evasion of the Supreme Court decison that 7 judges dissented.  Here is one of those dissenting opinions “Schad was first convicted on October 5, 1979, and sentenced to death on December 27, 1979.  Schad was convicted on retrial on June 27, 1985, and sentenced to death for a second time, by a second judge, on August 29, 1985.  Now, over 33 years after he was first convicted and after the Supreme Court denied Schad’s petition for certiorari, the panel majority has “reconsidered” its own prior decision, likely giving Schad another six years to live.For the reasons discussed by Judge Tallman, the panel majority’s legal basis is unsound and, as the district court already concluded, Schad’s ineffective assistance claim is meritless. The sole point of this exercise was to buy Schad more time—the very thing he took from [victims] Lorimer Grove and Clare Odell Mortensen. Victims have rights, too. The panel majority’s decision here cavalierly disregards those rights in favor of a twice-convicted murderer who has already had the benefit of 33 years of legal process. I respectfully dissent.”

Note: after the draft of this case was written, the Supreme Court reversed the 9th Circuit  in another case; Ryan v. James.   A death penalty case, the favorite 9th Circuit method of finding ineffective assistance of counsel, was reversed by the Supreme Court in a  per curiam opinion. The Supreme Court remanded the case for the 9th Circuit to reconsider its Ryan opinion in “the light of Johnson v. Williams.”  A 1981 9th Circuit case (James v. Ryan, 679 F.3d 780 (9th Cir. 2012).reversed by the Supreme Court in 2013. Ryan v. James, 133 S.Ct. 1088 (2013).

And note:  The 9th Circuit actually affirmed a death penalty case (2-1) in Gulbandonson v. Ryan

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The 9th Circuit continues its reversal record in Johnson v. Williams that would have been incredibly unjust to the prosecution and the people of California.  Fortunately the Supreme Court reversed.

A procedural decision, Johnson is the type of case of little interest to the public, but significant to criminal procedure in general and the appellate process in particular.  If the pundits and critics of the death penalty want to know the cause for delay in courts, they can cite this case as another example of embarrassing rulings by the 9th Circuit.   The Supreme Court reversal is so obvious the reader may wonder about the integrity of some members of the Ninth Circuit who wrote the reversed the original decision entitled Williams v. Johnson, 646 F.3d 626 (9th Cir. 2011).

Charged with felony murder (underlying felony is robbery) of a store clerk, the evidence in Williams was not in question. Williams admitted at trial that she was the driver of a getaway vehicle but did not enter the store and thought her companions who actually killed the store clerk had entered just to “case” the place.

The jury disbelieved her 11-1 in a few hours.  During jury deliberations the jury foreman informed the judge that the holdout juror mentioned “jury nullification, worried about the severity of the penalty, and held a very reasonable doubt  (not the  legal test of “reasonable doubt).” The judge interviewed the jury foreman, all the members of the jury, and the one holdout.  Concluding the juror was refusing to comply with the law, the judge excused him.  The replacement juror voted for conviction. 

Williams appealed to the California Court of Appeal, and the Justices wrote their opinion citing a recent California Supreme Court case on the law of excusing holdout jurors.  The state appellate court concluded the juror excusal was justified for “cause” under California law and not because he held out based on the evidence.  Conviction affirmed.  Williams’ habeas corpus petition in U.S. District Court was denied and she appealed.

The 9th Circuit held the state court had not considered the federal claims of the Sixth Amendment right to a jury trial. California law parallels federal law on the Sixth Amendment but the California Court of Appeal did not mention it in their opinion although they extensively discussed the subject of jury excusal under California.law.  Absent any record the state court had  considered the Sixth Amendment, the 9th Circuit panel reversed.

Inexcusable decision.  The case was a routine criminal trial; the defendant only denied her complicity in the actual murder despite driving the getaway car with two companions who had just killed the store clerk and fled the scene with her. The jury disbelieved the defendant.   One juror worried about extraneous issues, including the severity of the penalty-which a juror is not entitled to consider.  The trial judge carefully examined the jurors and made a decision to excuse the holdout.

In the first place, trial judges consider the demeanor, attitude and answers to questions asked of a juror. The appellate court only read a cold record.  Even the trial record alone established the attempt by the trial judge to understand the reason for the holdout by one juror and concluded he should be excluded. Not in the 9th Circuit of course, by judges who never tried a criminal case, and against the opinion of three state court judges and an a federal trial judge

Reversed by the Supreme Court.  Unanimously.  The Justices engaged in technical questions of appellate practice involving the appropriate methodology for federal courts to review a state court judgment on habeas corpus.  Although the Supreme Court decision discusses the failure of state courts to always cite federal court decisions (except of the Supreme Court) in their decisions, they are are not bound to follow them.  A state court judgment on appeal is presumed correct although rebuttal is occasionally possible. The federal court decisions do not call for review of state court appeals unless lhe error is egregious.

Justice Scalia concurs in the Supreme Court opinion but asserts the state court judgments on the merits are enough and a  review of whether they omitted to include specific federal claims is irrelevant. He points out that the  decison in this case allowing rebuttal of state courtdecisions will continue to allow federal courts, and the 9th Circuit in particular, a loophole they are sure to exploit.

The most damaging part of the 9th Circuit decision is this language from the Supreme Court: ” The possibility that the California Court of Appeal had simply overlooked Williams’ Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit.”  This comment is evidence of deplorable juducial conduct.  

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