Another gruesome and indefensible murder with no argument on guilt. In its usual rambling summary of counsel and his “ineffective defense” to a crime that warrants the death penalty no matter the content of the “mitigating” evidence, the Ninth Circuit panel remands the case for another hearing on the penalty phase.
The Ninth Circuit identifies three major categories in reversing the death penalty. For the last decade this court has reversed every case on one or more of these grounds. Invoking habeas corpus, the court in all three categories filed its decision after the California Supreme Court had affirmed the conviction and penalty. First: if the prosecution excuses a black juror in a trial involving a black defendant the peremptory challenge violates Batson; Second: Trial counsel is ineffective no matter what he does; Third: An erroneous jury instruction or jury misconduct occurred. Because the Ninth Circuit panel reviews trials heard decades ago, it initially assures the reader its opinion is not governed by AEDPA, thereby enabling use of the less deferential standard in effect before Congressional enactment of the revised standard. Yet the Supreme Court has repeatedly reversed the Ninth Circuit in censorious terms. In Crittenden, Ms. Casey, the only African-American prospective juror, noted on her questionnaire I don’t like to see anyone put to death. During voir dire, Ms. Casey said she was against death-being put to death and against killing people. She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty.” Would any prosecutor not challenge a juror who answered in this manner? The Ninth Circuit panel thought this peremptory challenge violated Batson despite the trial judge’s finding no discrimination occurred. The Supreme Court has repeatedly reminded appellate courts that the trial judge is in the best position to judge the prosecutor’s credibility. Not in the Ninth Circuit.