Monthly Archives: March 2011

Felkner v. Jackson, 131 S.Ct. 1305 (2011)

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In a curt and dismissive opinion, the Supreme Court reversed a 9th Circuit decision of a state court judgment so “inexplicable “and “unexplained” that it required only a unanimous per curiam decision.  The Justices have repeatedly warned the 9th Circuit to review state court judgments in criminal cases on a “highly deferential basis.”  All the 9th Circuit wrote in Felkner v. Jackson was a three paragraph reversal without any analysis and absent any reference to the California state court decision.

Felkner v Jackson involved another Batson application on excusing minority jurors.  The 9th Circuit  has embraced Batson and reversed state courts on habeas corpus as early as Rice v. Collins,543 U.S. 333 (2006).  Apparently the judges, most of whom have never tried a criminal case, know nothing about voir dire. Appellate judges reading from a cold record without any understanding of the impression an individual juror presented, and rejecting the decision of the trial judge who supervised voir dire, some of  the 9th Circuit judges view any peremptory challenge of a minority juror as questionable In…..the judge wrote that the decision to excuse a juror was understandable but not the “real reason.” This is incomprehensible.

9th Circuit judges who reverse state court judgments are the same almost every time and their decisions predictable regardless of the evidence.  See, Crittenden v. Ayers, 624 F.3d 943 (2010) [earlier blog]

Here is the 9th Circuit opinion referenced by the Supreme Court:

“The Court of Appeals for the Ninth Circuit reversed in a three-paragraph unpublished memorandum opinion. 389 Fed.Appx. 640 (2010). In so doing, the court did not discuss any specific facts or mention the reasoning of the other three courts that had rejected Jackson’s claim. Instead, after setting forth the basic background legal principles in the first two paragraphs, the Court of Appeals offered a one-sentence conclusory explanation for its decision:

“The prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors.”
That decision is as inexplicable as it is unexplained. It is reversed.”

Robinson v. Ryan, 595 F.3d 1086 (9th Cir. 2010)

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The Ninth Circuit continues its ideological ways in another context.  In a 2-1 decision written twenty three years after the conviction, Robinson v. Schriro/Ryan 595 F.3d 1086 (9th Cir. 2010, the evidence established that in 1987 Robinson and two cohorts loaded shotguns and shells into his truck, and all three drove from California to Arizona at his direction to locate a woman he sought.  The two men forcibly entered the house of two elderly relatives of Robinson’s wife, ordered them to lie on the floor, bound their arms and legs, and shot both of them repeatedly in the back, killing the woman and seriously injuring the man who lost one eye.The jury convicted Robinson of murder and voted the death penalty.  The Arizona Supreme Court affirmed the conviction, reciting significantly more evidence in its opinion than the Ninth  Circuit;  State v. Robinson, 796 P.2d 853 (1990).
The 9th Circuit panel engaged in a linguistic analysis over the definition of the words “cruel, heinous,and depraved, “aggravating factors required for imposition of the death penalty in Arizona state courts.  The court wrote “[Robinson] has argued the ‘cruelty prong’ of the aggravating factors did not apply because the prosecution produced no evidence that the two victims actually suffered significant pain or distress  The panel decided ‘[t]he cruelty prong of the aggravating factors relate to the physical and mental  suffering of the crime during the murder, and accordingly “there is no evidence of significant pain or distress’ suffered by the two victims.
But one victim died while bound with tape on the floor and the other suffered serious injuries.  According to the Ninth Circuit,  forcibly entering a home, ordering the elderly occupants to lie on the floor, binding them, exhibiting shotguns, executing one and seriously injuring the other does not constitute “cruelty.”