This case illustrates not only the justification for innumerable reversals of the Ninth Circuit by the Supreme Court but the indefensible decision of judges who lack any understanding of jury trials. The plaintiff sued the City of San Diego and three of its officers alleging the use of excessive force in a conflict between himself and the officers. Obviously the witnesses for both sides told inconsistent stories, and the jury found two of the officers not liable. In the verdict as to the third officer, the jury found he violated plaintiff’s Fourth Amendment right to be free from excessive force, and his actions caused harm to the plaintiff. The jury awarded the plaintiff no compensatory or punitive damages. Counsel for plaintiff requested attorney fees in a special verdict and the jury awarded plaintiff one dollar. The police department conducted an internal investigation and exonerated the officers. Attorney fees are awarded 1983 cases, regardless of the damages award, if the jury finds nominal damages achieved tangible results “sparking a change in policy.”
The Holder v. Humanitarian etc. case is the first of four cases decided by the Supreme Court reversing the Ninth Circuit on the same day. See, Rent-A-Center West, Inc. v. Jackson, 2010 WL 2471055 (Arbitration); Monsanto Co. v. Geerston Seed Farms, 2010 WL 2471058 (Environment); Kawasaki Kisen Kalsha LTD. v. Regal-Beloit Corp. 2010 WL 2471056 (Forum Selection Clauses) In 1996 Congress passed the Anti Terrorism and Effective Death Penalty Act, 18 U.S.C. 2339B prohibiting anyone from providing ” material support or resources” to certain foreign organizations that engage in terrorist activity. The plaintiffs filed litigation to prevent enforcement of the statute against their attempt to provide “humanitarian and non violent services” to two groups whom the State Department had listed as terrorist organizations. Plaintiffs alleged the statute, as applied to them, violated the First and Fifth Amendments. The Ninth Circuit agreed, at least in part, and struck down certain portions of the statute on grounds the terms were too vague; 552 F.3d 916 (2009). The U.S. government appealed. The Supreme Court upheld the statute in every respect, at least as to the facts in this case. The Court majority rejected the plaintiffs’ contention that they were engaged in assisting in providing peaceful means to the terrorist organization. That a terrorist organization somehow distributes these funds to non-terrorist activities defies reason. Terrorists do not construct “firewalls” to distinguish the appropriate location for receipt of funds or services. Funding terrorists for so-called “peaceful purposes” is an oxymoron. Funding provides the means for imposing terrorist objectives and reduces dependence on collateral sources. That the three dissenting judges think the plaintiffs’ funds will be used for peaceful purposes can hardly be characterized as anything other than naive, to put it mildly.
The trial judge in a state court explained the role of the jury to prospective jurors by warning them to put their personal experiences aside to avoid the potential of bias or prejudice. Counsel for the defendant did not object to this pre trial comment. The California Court of Appeal affirmed the conviction and dismissed the objection to improperly instructing jurors as harmless. On habeas corpus in U.S. District Court, the judge agreed and denied the petition. Apparently the Ninth Circuit panel thought this instruction to jurors so prejudicial it reversed the jury verdict of guilt. Aside from this incredulous result, the panel completely avoided AEDPA and simply cited inapplicable Supreme Court cases. Not a single case applied to these facts. The 2-1 majority cited cases where blacks and women were excluded from jurors. No one was excluded in Taylor’s case on those grounds. This decision is another example of an inexperienced panel of judges who never tried a criminal case. Here is the dissent (citations deleted):
A panel of three Ninth Circuit judges, who have never been inside a criminal courtroom, overruled: a unanimous jury verdict in state court; an affirmance of the conviction by the California Court of Appeal; a denial of a hearing in the California Supreme Court; denial of a petition for habeas corpus in a U.S. District Court; and granted the defendant Lunbery’s petition for habeas corpus. Without reciting the evidence, the prosecution case depended almost exclusively on the defendant Kristi Lunbery’s confession six years after her husband was found dead in their home. Death was caused by a single gunshot to the head but the weapon was never located. Lunbery confessed to detectives but later repudiated her confession. Sheriff’s investigators interviewed an acquaintance of a previous tenant in the Lunbery house who reported seeing a substantial amount of drugs and one Garza. Interviewed. Not testified. A “confidential informant” who did not testify, told detectives . . .”that he felt the killing had been a mistake.” A witness testified on the night before the body was found he saw a distinctive car park in front of the Lunbery residence for twenty to thirty seconds and drove off. He apparently heard no gunshot. Investigators interviewed another “confidential informant” who linked the car to Garza. A third person told detectives he and two friends were discussing the victim’s death several days later when Garza approached their table and said “My partners blew away the wrong dude.” Correctly, the trial court denied all motions to introduce all this hearsay. The Ninth Circuit held that the defendant Lunbery had a right to allege a third party committed the crime regardless of hearsay rules if her right to Constitutionally present a defense under the Sixth Amendment is frustrated. Citing Chambers v. Mississippi, 410 U.S. 284 (1972), a case entirely different from Lunbery, the Ninth Circuit said this inadmissible hearsay was admissible. Hearsay testimony from two “confidential informants,” and from two men who heard Garza, now deceased, admit a mistaken killing, is enough to warrant reversal? According to the Ninth Circuit, “The excluded testimony thus bore substantial guarantees of trustworthiness . . . ” The Ninth Circuit panel only cited Chambers to justify Supreme Count precedent in an attempt to comply with AEDPA. The Supreme Court has repeatedly reprimanded the Ninth Circuit for evading the restrictions of AEDPA. Conceding the weakness of the prosecution case, what did defense counsel argue to the jury without the “trustworthy” hearsay evidence? Only the credibility of the defendant. If a jury does not believe a witness, the “trustworthy” evidence is irrelevant. Kristi repudiated her confession, without which the prosecution could not have proved its case. No gun was found; no bloodstained clothes were found; no fingerprints. And no witnesses to the crime. The jury did not believe her testimony. All the hearsay meant nothing but speculation.
In another death penalty case the Ninth Circuit has stymied the state court system and authorized a further “evidentiary hearing.” Eight judges dissented. Here is the language of the dissent: “The majority opinion [not referenced here ]substantially erodes AEDPA’s requirement that a person challenging the constitutionality of his state conviction diligently pursue his claim in state court in order to obtain an evidentiary hearing in federal court. 28 U.S.C. 2254(e)(2). Not only does the majority’s decision contravene the Supreme Court’s decision in Williams [v. Taylor] by permitting an evidentiary hearing in the absence of an initial showing of diligence by the petitioner, it effectively eviscerates the diligence requirement altogether by endorsing a simultaneous hearing on both the petitioner’s diligence and the merits of his claim of ineffective assistance of counsel (IAC). In approving of a single hearing on both issues, the court allows a petitioner to present new evidence on the merits of his underlying claim in a full-blown evidentiary hearing without first establishing that he was diligent in developing such evidence in state court. Moreover, the majority’s decision effectively eliminates the requirement that a petitioner present a colorable claim for federal habeas relief before a federal court may grant an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The potential for mischief created by the majority’s approach is evident here, where it urges an evidentiary hearing on the merits of Schad’s IAC claim without ever considering the double deference owed under Strickland v. Washington, 466 U.S. 668 (1984) and AEDPA. Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009) (explaining that a federal court’s evaluation of a Strickland claim under 2254(d)(1) must be deferential to both the state court’s decision and counsel’s strategic choices). We should have reheard this case en banc to rectify these departures from Supreme Court precedent and to correct what district courts in our circuit are likely to perceive as a confusing directive to hold evidentiary hearings where Congress and the Supreme Court have determined that none are permitted.” “After more than thirty years of litigation, this case has not come to rest. Schad was convicted of first-degree murder in 1979, and was sentenced to death in 1985 following a retrial. The majority’s order remanding for further proceedings and a possible evidentiary hearing ensures that the litigation will continue for several more years despite every indication that it should end.” This dissent speaks for itself. A majority of Ninth Circuit judges will not allow imposition of the death penalty under any circumstances. One judge dissented from the three panel decision in addition to the eight judges who dissented from a hearing en banc. This case will undoubtedly be reviewed by the Supreme Court.