Monthly Archives: November 2010

Brewer v. Landrigan, 131 S.Ct. 445 200 (2010)

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The most recent Supreme Court repudiation of the Ninth Circuit occurred in Brewer v. Landrigan, 131 S.Ct. 445 (2010). Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that crime, he repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered another man in Arizona. Convicted and sentenced to death in state court and affirmed on appeal, the Ninth Circuit granted his habeas corpus petition and reversed on its customary ground of “ineffective counsel.” The Supreme Court reversed and remanded.
Shortly before the scheduled date of execution, Landrigan filed a 28 U.S.C. 1983 claim in U.S. District Court, contending the drug used in the execution was not approved by the FDA. The district court granted a temporary restraining order and, on appeal by the State of Arizona, a Ninth Circuit panel affirmed. The State sought to vacate the order in the Supreme Court. The Justices reversed the Ninth Circuit in a single paragraph, dismissive of the Ninth Circuit rationale of its decision, and citing the absence of any evidence to impugn the safety in using the drug.

Smith v. Mitchell, 624 F.3d 1235 (9th Cir.2010)

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Federal appellate courts can review state court convictions on habeas corpus, deferring  to state appellate courts absent non compliance with Supreme Court decisions; 28 U.S.C. 2254 (d).  Congress, frustrated by federal court interference with state courts, attempted to limit its appellate authority under 28 U.S.C. 2254 (d) but the Ninth Circuit repeatedly ignores the statute, citing it and then distinguishing it.

No case illustrates this practice more vividly than Smith v. Mitchell (all citations omitted).  The state trial court jury convicted Smith; the California  Court of Appeal affirmed the conviction; the California Supreme Court denied review; the U.S. District Court denied the petition for habeas corpus.  On appeal, a three judge Ninth Circuit panel reversed alleging insufficient evidence of guilt.The Supreme Court reversed the Ninth Circuit and remanded.  The Ninth Circuit on remand reversed the conviction again; the Supreme Court reversed and remanded again.  On remand, the Ninth Circuit reversed again for the third time. Every court that has reviewed this case disagreed with the Ninth Circuit.

The facts, briefly stated are uncomplicated.  The jury convicted the defendant in a “baby shaking” case.  Expert witnesses for prosecution and defense had testified to the cause of death, obviously disagreeing.   The Ninth Circuit preferred the defense witnesses and granted the petition for habeas corpus; Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006).  On appeal (cert.) the Supreme Court reversed and remanded (citing as authority a different 9th Circuit case it had previously reversed). On remand, the Ninth Circuit panel reached the same result the second time on a different theory and reversed; 508 F.3d 1256 (9th Cir. 2007). Reversed again by the Supreme Court and remanded (citing another case reversing the 9th Cir.).  On remand, for the third time, the Ninth Circuit reversed again.

It never occurred to these appellate judges, particularly those who have never tried a case, that the jury did not believe the defense witnesses.  And the prosecution did produce evidence warranting a conviction. The basis for an erroneous conviction, aside from a unanimous verdict, apparently eluded the trial judge, the California Court of Appeal, the California Supreme Court and the U.S. District Court.  The Supreme Court will see this case again if the Ninth Circuit does not reverse its three judge panel en banc.

Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010)

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Lawyers who litigate in civil cases, and prosecutors and defense counsel in criminal cases, know the importance of voir dire of the jury. But all lawyers do not agree on whom to challenge, and their reasons vary infinitely.  They decide not necessarily based upon the answers to their questions but juror demeanor, their voice, the way they answer questions, their body language or just an intuition about the juror that suggest a peremptory challenge.

None of this resonates on the cold appellate record but the Ninth Circuit judges, particularly those who have never tried a case, ignore these factors and search the record in a quest for error-particularly in death penalty cases.

A perfect example is Crittenden v. Ayers.  From an exerpt of the case, here is the exchange between the prosecutor and the prospective juror: “Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. 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.”

“After questioning Ms. Casey, the prosecutor challenged her for cause ‘based upon her answer that she doesn’t believe in the death penalty.’ The trial court immediately denied the challenge without explanation.”
“Several days later the exercise of peremptory challenges began. The prosecutor used his fifteenth peremptory challenge to remove Ms. Casey from the jury. Crittenden’s counsel moved for a mistrial . . . and filed a lengthy motion asserting that striking Ms. Casey was race-based.

Objectively, would any lawyer fault this challenge?  The answers of the juror on the death penalty were so equivocal that the prosecutor challenged her for “cause.”  But according to three judge panel,  the challenge could have been “race based,” and they remanded for an evidential hearing despite the fact the California Supreme Court had already affirmed the conviction.

In addition, the evidence of guilt was overwhelming.  For the last decade in the Ninth Circuit, any death penalty is subject to reversal.  And on this case for the flimsiest of reasons.

Catholic League v. City/Co./San Francisco, 624 F.3d 1043 (9th Cir. ( 2010)

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Here is a Resolution passed, but not enacted, by the San Francisco Board of Supervisors:
WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and
WHEREAS, The statements of Cardinal Levada and the Vatican that Catholic agencies should not place children for adoption in homosexual households, and Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children are absolutely unacceptable to the citizenry of San Francisco; and
WHEREAS, Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and
WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and
WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it
RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.
The Court: “Plaintiffs sued the City, claiming that this official government resolution violates the Establishment Clause. The district court dismissed their lawsuit for failure to state a claim upon which relief could be granted, and we initially affirmed.” On rehearing en banc, in a split decision, the Ninth Circuit affirmed the District Court.

The Ninth Circuit decision cites innumerable cases on First Amendment Establishment Clause cases and ultimately concludes the plaintiffs lack “standing” and cannot prevail on the merits. If the Board of Supervisors had  submitted a Resolution  to any other group  in this callous and vicious language would the result be the same?

That the City & County of San Francisco expended taxpayer money to defend this attack on the Catholic Church is itself indefensible. But the underlying issue is this: Homosexual and lesbian groups repeatedly urge Californians to exercise “tolerance.” This Resolution is an example of the City and County’s understanding of “tolerance.”

The City & County of San Francisco also enacted another ordinance mandatorily imposing racial and gender preference on those bidding on public contracts; Coral Construction, Inc., v. City & County of San Francisco.   The California Supreme Court rejected this ordinance in a 6-1 opinion.

Here is another example of San Francisco “tolerance”: Bologna v. City  & Co. of San Francisco, 2011 WL 28629 (Cal.App.). 
While stopped in traffic, an illegal alien shot and killed three men sitting in another car.  Estates of the deceased men sued the City and Co. based upon its “sanctuary policy” established by the City.  Under this policy, the City & Co. do not report information to Immigration and Customs Enforcement (ICE) if aliens are arrested locally. A federal statute mandates all governmental entities to share information with ICE for arrests or convictions of illegal aliens; 8 U.S.C. 1373. Plaintiffs alleged the failure of police to report an alien previously arrested enabled him to maintain his freedom and kill the three men.

The Court of Appeal for the First District (San Francisco) unsurprisingly held the only relevant state statutes imposing liability on public officials inapplicable to the allegations in the Complaint.

Teposte v. Holder, 632 F.3d 2049 (C.A. 9)

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Teposte v. Holder, 2011 WL  4189302  (C.A. 9); amended: 2011 WL 167037 (C.A. 9)

Teposte was admitted into the United States as a lawful permanent resident (also known as amnesty). One year later he was convicted of Cal. Pen. Code 246, “firing at an inhabited dwelling.” The AG filed a removal proceeding. At the immigration hearing the IJ ruled the conviction constituted an “aggravated felony” (crime of violence), a deportable offense, disqualifies cancellation of removal, and ordered deportation; 18 U.S.C. 16 (b). The BIA affirmed.

Federal law defines a crime of violence as “any felony . . . involv[ing] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Whether firing at an inhabited dwelling is a “crime of violence” is so obvious that deportation should be automatic. No, the Ninth Circuit panel engages in academic hairsplitting unintelligible to the average person.  The court holds that reckless conduct or gross negligence is insufficient to categorize P.C. 246 as a “crime of violence.” Only if the act was committed intentionally does a conviction qualify.  “Recklessness” in htis context is not a crime of violence?

Assuming gross negligence might escape the definition of a “crime of violence,” common sense would justify the DA to dismiss the case.

The court admits its holding is restricted by a prior Ninth Circuit case, but another common sense application of an “aggravated felony” awaits the Supreme Court.

Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010) [abrogated in Swarthout v. Cooke, infra.

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Federal courts manage California county jails; state prisons; parole hearings; issue habeas corpus on state court rulings; decide state elections and Initiatives; supervise the Los Angeles Police Dept.; appoint Receivers. In Pearson v. Muntz, on rehearing en banc, the 9th Circuit held it could compel parole of a prison inmate denied release by the Governor of California who did not comply with state rules on parole release. The California Supreme Court has held that under California law, the Board of Prison Terms must find “some evidence” of the inmate’s present dangerousness to prevent his release on parole. According to the 9th Circuit majority, the Governor, who exercises review authority of the Board, did not follow state law in denying Pearson’s parole. According to the Ninth Circuit, failure of a state to follow state law violates federal due process. The dissenters (seven judges dissenting from denial of rehearing) in Pearson argued the 9th Circuit is bound by AEDPA, the federal statute circumscribing federal judicial review of state court cases and simultaneously limiting their appellate powers only to cases that fail to follow “established Supreme Court law.” There is no Supreme Court law mandating the 9th Circuit to interpret state statutory or state Constitutional law unless violative of federal due process. The Supreme Court has held the states are under no obligation to allow parole, and the only “process” that is “due” allows the prisoner an opportunity to be heard. Not a single Supreme Court case authorizes a federal court to review state parole law other than that provision.