Monthly Archives: December 2007

Marshall v. Henry, 224 Fed.Appx. 635

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In 1986 a jury convicted Robert Henry of murder in a California state court and the judge sentenced him to life imprisonment without possibility of parole. The Court of Appeals affirmed the conviction and the California Supreme Court denied review. Henry filed petitions for habeas corpus in state court and all were denied. In 2005 Henry filed a petition for habeas corpus in U.S. District Court contending he was “actually innocent” of the crime. The judge denied his request and refused to issue a certificate of appealability (COA) based on petitioner’s contention.
Henry appealed to the Ninth Circuit who accepted his lack of a COA and, in an unpublished opinion filed in 2007, ordered the District Court to provide a hearing on the issue of actual innocence; Marshall v. Henry, 224 Fed.Appx. 635 (9th Cir. 2007). The Ninth Circuit panel recited no facts of the underlying case and, without any legal analysis, held that petitioner only needed a low threshold to establish his actual innocence. In a two page opinion the panel ordered the trial court to hold a hearing on that issue. No legal citation for this opinion, no concern for the 18 year delay in filing the petition, no weighing the evidence, nothing other than a ukase.
On seeking review of this decision, the California Attorney General argued that the Henry case conflicts with the Supreme Court rule in Herrera v. Collins, 506 U.S. 390 (1993) “[B]ecause of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high and the evidence would have to be truly persuasive; Schlup v. Delo, 513 U.S. 298 (1995).”
The Henry case invites any petitioner to argue “actual innocence” without supporting evidence recited in the record, undermines state courts as fact finders, clashes with federalism and erodes the finality of a conviction. Despite Supreme Court cases directly to the contrary, the Justices denied review (certiorari); Marshall v. Henry, 2007 WL 2329696.
 Compare Henry with Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006). Evidence conclusively established that Smith and one Edmonds prepared to burglarize the home of an elderly couple by arming themselves with a crowbar and a rope. During the burglary, Smith killed the husband and seriously injured his wife. Smith pled no contest to felony murder and was sentenced in 1989. Prior to Henry’s plea, the prosecution had offered Edmonds immunity and a reduced sentence in exchange for his testimony implicating Smith.
After Smith pled, Edmonds received a reduced sentence. Smith filed petitions in the Oregon courts-all denied- alleging “ineffective counsel” at his plea. Approximately three years later, Edmonds was released from prison and submitted an affidavit alleging Smith was not the killer, although not personally acknowledging his own responsibility. The prosecution warned Edmonds that if he testified to this effect at a hearing they would potentially move to vacate his plea, seek the death penalty and file a perjury charge. Unsurprisingly, Edmonds withdrew his offer to testify.
Nonetheless, Smith petitioned the District Court claiming lack of due process, prosecutorial misconduct and actual innocence. The magistrate held a hearing, found no reason to grant the petition because Edmonds now refused to testify. Smith appealed to the Ninth Circuit. The principle issue on appeal was not the merits of Smith’s argument but whether his failure to timely assert actual innocence in state court barred his appeal. The Ninth Circuit panel, in a 2-1 decision, held that “[we] presume Edmonds affidavit to be true for the purposes of determining whether Smith is procedurally barred from proceeding in federal court.” The panel cited no authority for this statement.
What followed was an argument by the majority panelists supporting every possible inference that a reasonable jury would find that Smith did not kill the victim. In a lengthy recital of all the possibilities, the panel majority finally held that Smith can present his constitutional claim (lack of due process) that he never asserted until the Edmonds affidavit. According to the majority, the prosecution threats to file a new case against Edmonds and seek the death penalty amounted to prosecutorial misconduct.
The dissent is a blistering rebuttal. Aside from the fact Edmonds committed another brutal crime after his release on the instant offense, Smith pled to felony murder. Speculating on what a jury would do in a case never tried is an exercise in futility. Even if Edmonds testified Smith was not the killer, who was? Both entered the house, bludgeoned one victim and killed the other. Under any state law they are principal/accomplice and equally guilty. The majority opinion is essentially empty rhetoric. Apparently other members of the Ninth Circuit agree with the dissenting judge that no prisoner has ever succeeded in establishing actual innocence in all the years since the Supreme Court allowed this contention in Schlup v. Delo, 513 U.S. 298 (1995).

U.S. v. Ressam, 474 F.3d 597 (9th Cir.2007);128 S.Ct.1858 (2008)

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U.S.C. 844 (h) prescribes a mandatory sentence for anyone who “carries an explosive during the commission of a felony.” The defendant, trained by Al Queda, attempted to enter the United States but was arrested when he falsely identified himself during a border inspection. A search of his vehicle revealed explosives. Convicted in District Court on multiple counts, he appealed to the Ninth Circuit alleging U.S.C. 844 (h) required a “relationship” between the underlying felony (false declaration) and “[carrying] explosives.” After an extensive exegesis of the statute, the Ninth Circuit panel held a “relationship” between the crime of submitting a false declaration and carrying explosives did not exist ; U.S. v. Ressam, 474 F.3d 597 (9th Cir. 2007). Sentence on this count vacated.
Conceding that other Circuits had read the statute differently, the panel decided its own precedents in statutory interpretation precluded them from reaching a different result. The Third and Fifth Circuits had held that the word “during” the commission of a felony is self-explanatory. It would seem so. Five judges dissented from this opinion. The Supreme Court reversed and remanded: See, Blog, 128 S.Ct.1858 (2008)reported on May 20 2008.
After reversal, the 9th Circuit remanded the sentence; the rial court imposed the same sentence; the 9th Circuit remanded amd transferred the case to a different judge; 629 F.3d 793 (9th Cir.2008). 

Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2009)

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The following is taken from the original Ninth Circuit opinion: Fisher v. City of San Jose, 475 F.3d 1049 (2007). On rehearing en banc, the court reversed; Fisher, 558 F.3d 1069 (9th Cir. 2009). As judges, we should not armchair quarterback a crisis from the safety of our chambers. Such post game analysis is disconnected from reality. . . What facts induced this Ninth Circuit judge, dissenting from a court decision written by two other judges, to write this scathing remark? Herewith an abbreviated version of the evidence in a civil case filed against a city and several of its police officers alleging violation of civil rights. A security guard responding to a complaint of excessive noise in an apartment complex contacted Steven Fisher, an intoxicated tenant in the process of cleaning a rifle, and invited him outside to talk about the source of the noise. Fisher exited his apartment carrying the rifle. During their conversation, the guard, frightened by Fishers menacing demeanor and fearing for his safety, contacted the San Jose Police Department. Police officers arrived shortly before 2:00 a.m. to investigate but Fisher, having returned inside his apartment, refused to open the door, responded incoherently to the officers, and cited the Second Amendment right to bear arms. He invited one of the officers into his apartment but threatened to shoot her-a felony-if she entered. The patrol officers called for support from an experienced team of officers. Several hours later and throughout the morning, officers observed Fisher walking around inside the apartment carrying a rifle. One officer testified at a subsequent trial that Fisher pointed his rifle at the officers and at another time apparently loaded the weapon in their sight. For a period of six hours the officers could not see whether Fisher was armed or had weapons accessible to him. Attempts to contact him by telephone were unsuccessful. Other uncontradicted testimony at trial established Fisher had eighteen rifles in his apartment. Police evacuated the entire apartment complex, extinguished the power in Fishers apartment, broke the glass door to his apartment and tossed in a throw phone to talk to him because the regular telephone line emitted a busy signal. Officers threw a flash bang device into the apartment in an attempt to disorient Fisher and subsequently hurled gas canisters through the broken glass door, all tactics unavailing. Ultimately police established contact with Fisher using the throw phone and he agreed to leave the apartment unarmed. Upon his exit, officers placed Fisher in custody but at no time requested an arrest warrant from a court. Fisher sued the City and several police officers for Constitutional violations (43 U.S.C. 1983) alleging the warrantless arrest entitled him to money damages. At the trial, the jury unanimously found in favor of the defendant City and its police officers-including a verdict rejecting Fishers claim that officers arrested him unlawfully without a warrant. Despite the jury verdict, the U.S. District Court judge invoked a federal rule* granting Fishers motion for judgment in his favor as a matter of law, and ruled the arrest conducted without a warrant violated his rights. In an exercise of judicial hubris, the court awarded Fisher one dollar in damages and ordered the police department to conduct training on the law of arrest and search. The two judge majority of the Ninth Circuit panel affirmed the trial court ruling on appeal. The Ninth Circuit panel majority ruled that officers can only enter a house to effect an arrest if they have obtained an arrest warrant from a magistrate unless precluded by exigent circumstances constituting an emergency. According to the panel majority, the truncated version of the facts recited above does not constitute an emergency dispensing with the warrant requirement. In their opinion, evidence that an incoherent and intoxicated individual in possession of multiple firearms who threatened to shoot an officer, pointed guns at other officers and avoided every attempt inducing him to exit the apartment does not constitute an emergency dispensing with the need to obtain an arrest warrant. Here is the panel majority rationale: the arrest warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. . . Rather, officers must obtain a warrant before any additional incursions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant. The dissenting judge replies: What we have here is very dangerous situation that was resolved safely for all concerned, Fisher, the public, and the police because of good police work. Nevertheless, the majority decision penalizes the police by announcing a new warrant requirement imposing liability upon them for failing to obtain a telephonic arrest warrant in the midst of a police standoff that could have turned deadly at any moment . . . Armed standoffs are fluid and dangerous situations that are stressful, tense, and require difficult decisions to resolve peacefully . . . Armed standoffs always require [complex] tactical decisions that attempt to balance the safety of all involved. Commentary: The Fisher case is not an arrest conducted by officers in a criminal case who mistakenly concluded they had probable cause to arrest, or lacked an arrest warrant. Fisher filed a civil case against the City of San Jose and its officers exposing them to liability for alleged violation of Constitutional rights. The jury verdict in favor of the City and its officers validated the propriety of the arrest, including a jury decision that police did not need an arrest warrant. The trial judge overruled the jury verdict and imposed his own version of the legal consequences of the arrest. Neither the majority nor minority panelists disagree the officers had probable cause to arrest Fisher. They disagree as to what point in time the arrest triggered the necessity for a warrant, whether at the time of the initial confrontation when Fisher refused to emerge from his apartment, or when the officers physically took him into custody. From the initial nighttime contact at 2:00 a.m. until 2:30 p.m. in the afternoon the standoff took place. The majority decision notes that for six hours during the standoff the police never saw Fisher armed, allowing ample time for officers to obtain a warrant, although he ignored repeated attempts to flush him out. The court failed to recognize that Fisher could have quickly concealed himself, ambush anyone who entered, and had the ability to stave off police with multiple firearms. Fisher caused the six hour period of time to elapse, not the officers, but according to the court majority, this period of time dissipated the emergency and permitted officers time to seek a warrant. The Fisher case stands for the proposition that when the initial emergency event is dissipated the justification for a warrantless arrest no longer exists. To avoid civil liability, the officers must seek judicial authorization for an arrest warrant, contact a judge, identify an officer to prepare papers or recite the facts telephonically to the judge in support of the affidavit, wait until the administrative process necessary to obtain the warrant concludes, review the accuracy of the warrant and affidavit, and notify relevant department personnel the arrest warrant has been issued. The panel majority decision is riven with legal discussions of the Fourth Amendment prohibiting unlawful searches and arrests potentially imposing civil penalties on police officers. But in the Fisher case, academic hairsplitting confirms the dissenting judges opinion of the panel majority decision: disconnected from reality. As the panelist minority notes, officers will now have to determine when dissipationoccurs. At their own risk. This case was originally reported in January, 2007; Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. 2007). The panel majority unilaterally withdrew the opinion, superseded it on denial of rehearing, and rewrote it; Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007). The case was reheard en banc, reversed and the court reinstated the jury verdict; Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir.2009). That three judges dissented is evidence that judicial naivete is alive and well;. Federal Rule of Criminal Procedure 50 (b).