Monthly Archives: October 2009

Ineffective Counsel: Ninth ; Sechrest v. Ignatio, 549 F.3d 789 (9th Cir. 2008); McDaniel v. Sechrest, 130 S.Ct. 243 (2009) (U.S.) Cert. Den.

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The Supreme Court has denied cert. in McDaniel v. Sechrest, 2009 WL 2058161 (C.A. 9) in yet another “ineffective counsel” case. Apparently the defense lawyer stipulated that the prosecutor could call a doctor who had examined Sechrest in the capacity of a defense witness. Although obviously unusual, defense counsel testified in a post evidentiary hearing that he thought the testimony would be more favorable. Admittedly questionable, but if the defendant had called the witness the testimony would have been the same. Or, if he did not call the doctor at all, there would have been no testimony. The result would have been the same. Here is the Ninth Circuit summary of the evidence: “On May 14, 1983, [the defendant] kidnapped and murdered ten-year old Maggie Weaver and nine -year-old Carly Villa. A few weeks later, two men found the girls’ bodies in [a canyon] a remote area east of Reno, Nevada.” This one sentence matter-of-fact rendition of a vicious murder of two young children surely did not warm the hearts of the parents. The court wrote nothing about the facts of the double homicide of two innocent and vulnerable children, and the defendant had no defense having confessed voluntarily to committing the crime, (even the Ninth Circuit panel could not reverse on Miranda grounds). But the prosecutor in his closing argument to the jury referred to the pathetic defense case as a “sham” and defense counsel failed to object. “Highly prejudicial” said the Ninth Circuit, so harmful the court vacated the death penalty. The Ninth Circuit panel evaded the obvious procedural default of the defendant on his writ of habeas corpus and the court held it was not prevented form resolving another legal issue never raised in the defendant’s state court post conviction filing. When the prosecutor argued for the death penalty to the jury, he apparently mis cited the State of Nevada rules on parole and the defendant’s eligibility for release from custody. The last straw: Sechrest was convicted in 1983 and the Supreme Court denied cert in 2009. And the case is not over. The Ninth Circuit panel ordered further evidentiary hearings.

Styers v. Schriro, 574 F.3d 1026 (9th Cir. 2008); Ryan v. Styers, 130 S.Ct. 379 (2009) (U.S.) Cert. Den.

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Ryan v. Styers, 574 F.3d 1026; Cert. Den., 130 S.Ct. 379 (2009) Styers planned and executed his live-in womans four year old child, presumably to obtain insurance proceeds. The jury found him guilty and the court sentenced him to death. The Arizona Supreme Court affirmed the conviction as did the U.S. District Court on habeas corpus. On appeal, the Ninth Circuit held the doctors who testified on behalf of Styers could not connect his alleged post traumatic stress disorder to the killing. According to the Ninth Circuit, this nexus test is Constitutional error as the trial court must consider all mitigating evidence without considering nexus. The Arizona Supreme Court did just that as the Ninth Circuit concedes: [T]he Arizona Supreme Court considered all of the proffered evidence. Despite that statement written by the Arizona Supreme Court on Styer’s appeal from his conviction in state court, the Ninth Circuit nevertheless reversed. Inexplicably, the Supreme Court denied review; Ryan v. Styers, 2009 WL 3162206 (U.S.). The Ninth Circuit continues to invoke a variety of reasons to reverse death penalty cases. In Styers, the Arizona Supreme Court affirmed the conviction for murder and death sentence on direct appeal as did the U.S. District Court on habeas corpus. As a tentative observation, the Ninth Circuit refuses to affirm a death penalty case with the single exception of a murderer who the court nevertheless encouraged him to seek clemency from the Governor and congratulated him on writing a book in prison.

Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009)

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Music students graduating from a Washington state high school had played musical instruments during graduation exercises of seniors for several years. In 2005 the school received complaints (the court does not say how many) that one of the songs contained religious connotations. In 2006 the graduating seniors in the Music Department selected an instrumental version of “Ave Maria.” The students who wanted to play “Ave Maria” thought the song best displayed their musical ability and was a “pretty piece.” According to the principal of the school, she refused to approve the music on grounds of a potential violation of the Establishment Clause of the First Amendment. She also worried about complaints from parents. One of the students, Kathryn Nurre, sued the principal and the school district for violation of free speech and hostility to religion under the Establishment Clause. The Ninth Circuit upheld the right of the principal, who held advanced degrees in education, to withhold performance of “Ave Maria” despite her previous unawareness of the title or the music. The two judge majority panel produced the usual cases on the Establishment Clause and ultimately denied the students’ claims. Being “offended” is now sufficient in Ninth Circuit case law to establish “standing.” The ultimate resolution of the Ninth Circuit decision confirmed the right of the principal to deny the students playing an instrumental piece of medieval music without lyrics during a graduation ceremony. As noted in the dissent, the principal’s concern with violating the Establishment Clause is sufficient justification to invoke it. So, worrying about a First Amendment violation is sufficient to confirm the rationale expressed by the principal. The Supreme Court in general and the Ninth Circuit in particular have lost their moorings in an attempt to interpret the Establishment Clause. The First Amendment was written in the shadow of English history to reject the “state church” of Henry VIII and Elizabeth. These two monarchs, in repudiating the Catholic religion during their reigns, tormented, terrorized and executed anyone who refused to subscribe to their new religion. Thousands fled England to escape the persecution of King and Queen. The core of the Establishment Clause is just that: state dominance of religion and coercive power to enforce its will. When Congress initially adopted the Bill of Rights, none applied to the individual states, which in some states had an “established church.” Only “incorporating” the First Amendment into the Fourteenth Amendment enabled the Supreme Court to impose its interpretation on individual states. Now, the Ten Commandments, a crhe, a county seal, crosses in a desert, all violate the Establishment Clause in the interest of not endorsing a “state religion.” The courts have never applied the rationale that the Establishment Clause forbids religious “coercion”, i.e.,compelling someone to subscribe to a religion and punish their refusal to conform. Refusing to allow students to play an instrumental version of “Ave Maria,” without lyrics, and the song undoubtedly foreign to the vast number of students at the high school-including the principal-defies comprehension.
The Supreme Court denied Cert. in 2010

Death Penalty: Ninth Circuit Reverses Two Cases: Schad v. Ryan, 581 F.3d 1019 (9th Cir. 2009); Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009)

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Schad Ryan The Ninth Circuit continues to reverse death penalty sentences no matter how horrific the crime, the paucity of mitigating evidence, the rejection of state supreme court and U.S. District Court decisions confirming the sentence, and the inexperience of Ninth Circuit judges who have never tried a criminal case. The cost and the delay, the indifference to “finality” of convictions, disrespect for “comity” of the states, and oblivious to the Congressional mandate to limit federal appellate courts in habeas corpus review under the Anti-Terrorism & Effective Death Penalty Act (AEDPA) have stymied imposition of the death penalty. The Ninth Circuit has reversed all death penalty cases for the last decade with only a single exception. When the Ninth Circuit can’t find wrongful prosecution exercise of peremptory challenges of minority jurors, lack of prosecutorial misconduct, no evidential error, or incorrect jury instructions, the court reverses based on “ineffective counsel” representing the defendant at trial or on appeal. No matter what counsel does in defense of the merits or mitigation of the sentence, it is “ineffective. Two recent decisions illustrate the objections cited by the Ninth Circuit in reversing the death penalty sentence. In August, 1978, an elderly man was found dead in the underbrush off the shoulder of a highway. Medical evidence established someone had strangled the victim with a cord knotted around his neck. Police subsequently found an abandoned vehicle rented by one Edward Schad, which had been stolen. Schad drove across the country using the victim’s car and purchasing gasoline with his credit card. Additional evidence conclusively established Schad’s culpability. Convicted of first degree murder and sentenced to death, the Arizona Supreme Court affirmed the conviction, as did the United States Supreme Court on cert. After four years of unsuccessfully attempting to set aside his conviction in state court, Schad filed a petition for habeas corpus in U.S. District court; denied. On appeal, the Ninth Circuit affirmed all challenges to the conviction but reversed the sentence previously upheld by the Arizona Supreme Court and the U.S District Court. Schad and his counsel spent four years in state court post-conviction proceedings. Counsel obtained 37 continuances, retained an investigator, a psychiatrist, collected declarations of Schad’s good character from others, but never alleged “ineffective counsel” until the end of the four year period. The District Court concluded the extended period of time spent in investigation lacked “due diligence” required to set aside a conviction or sentence in habeas corpus proceedings and denied the motion. On appeal, the Ninth Circuit said counsel had not presented enough evidence of Schad’s “troubled childhood “despite the probation report extensively reciting his abusive parents. ” Not enough” on the “troubled childhood” said the majority of the Ninth Circuit panel. And, said the panel, the District Court should hold a hearing to determine whether Schad proceeded with “due diligence.” A reading of the court decision reflects that counsel submitted substantial mitigating evidence at the trial, and whatever else of the “troubled childhood” that could have been produced would never have influenced the sentence. In addition, Schad had been previously convicted of second degree murder. The dissent skewered the majority decision. In the post-conviction proceedings, defense counsel could produce no evidence that would change anyone’s mind. A “troubled childhood” does not justify strangling an innocent man, stealing his car and driving around the country on his credit card. Convicted and sentenced originally in 1979, retried, convicted and sentenced in 1985, the Ninth Circuit has ordered another hearing in 2009. If the result is not in his favor: another appeal; Schad v. Ryan, 581 F.3d 1019 (9th Cir. 2009) Hamilton v. Ayers “Troubled childhood” also is the excuse for insufficient mitigation evidence in sentencing the defendant to death in Hamilton v. Ayers. Hamilton methodically planned to execute his pregnant wife and collect insurance money. The evidence was overwhelming, and the cold blooded planning for the execution caused the jury to vote the death penalty in 1982. Affirmed on appeal by the California Supreme Court, the conviction confirmed in U.S. District Court (habeas corpus), and reversed on appeal in the Ninth Circuit on grounds defense counsel was “ineffective.” Convicted in 1982, appeal decided in 2009; Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009). The California Attorney General should appeal both of these miscarriages of justice.