Monthly Archives: August 2011

USA v. Juvenile Male, 131 S.Ct. 2860 (2011)

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Reversed again by the Supreme Court, here is the 9th Circuit language on remand: In light of the Supreme Court’s decision in U.S. v. Juvenile Male, dated June 27, 2011 this appeal is DISMISSED (Caps. in original) as moot;” 2011 WL 3437508 (C.A. 9).
The 9th Circuit does not give the cite for the Supreme Court case (131 S.Ct. 2860) nor the cite for its own case; 590 F.3d 924 (9th Cir. 2010).  Here is the Supreme Court comment: “The Court of Appeals in this case held that the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.  16901 violate the Ex Post Facto Clause of the Constitution, Art. I, sec. 9 when applied to juveniles adjudicated as delinquent before SORNA’s enactment. We conclude that the Court of Appeals had no authority to enter that judgment because it had no live controversy before it.”
The Supreme Court reversed this case without rendering any decision on the underlying case decided by he (the Circuit.  In other words, the Supreme Court did not want the 9th Circuit to stand as precedent.

McComish v. Bennett, 653 F.3d 1106 (9th Cir. 2011)

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Reversed again by the Supreme Court, here is the language of the 9th Circuit on remand: “In accordance with the mandate of the Supreme Court in Arizona Free Enterprise Club’s Freedom Club PAC v Bennett, 131 S.Ct. 2806 (2011) the judgment of the district court is affirmed.”  Not a word about its own reversal in the same case, 611 F.3d 510 (9th Cir. 2010). This reversal of the 9th Circuit exceeds any prior year and sets a new record.  And more 9th Circuit cases remain on the docket for the October term of the Supreme Court.

Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011)

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In Christian Legal Society Chapter of the Univ. of Cal. Hastings School of Law v. Martinez, 130 S.Ct. 2971 (2010) a 5-4 majority of the Supreme Court held the law school policy prohibiting discrimination based on race, gender, and a variety of other “protected classes” applied to the Christian Legal Society and foreclosed the group from accepting a member who did not subscribe to the organization’s religious principles. Other secular groups could impose the same prohibitions, yet the Law School permitted them to use the facilities of the premises although denied to the Christian Legal Society.  According to the majority, the Law School allowed “all comers” to join various groups despite their restrictions except the Christian Legal Society.
The 9th Circuit took up a similar case in Alpha Delta Chi Chapter v. Reed.  San Diego State has an unequivocal, unambiguous and repeatedly established written policy emphasizing diversity and its importance to all students. Almost a “racial preference” policy in tone.  Because the Alpha Delta Chapter mandates compliance with Christian principles as a condition of membership, it encountered the same resistance from the San Diego Administration as in Hasting in using school premises and other “perks” allowed to secular groups.  The Chapter filed suit in U.S. District Court and did not prevail.  The Chapter appealed to the 9th Circuit.

The 9th Circuit panel cited the Supreme Court case above and found nothing wrong with excluding the Alpha Delta Chapter from recognition as an approved student group.  To its credit, on remand the 9th Circuit panel allowed the Alpha Delta Chapter to provide evidence that the San Diego State Administration was applying its policy in a discriminatory manner and ordered the District Court to conduct findings on that issue.

The anomaly of this case: In its student policy manual, San Diego State repeatedly mandates a non discrimination policy applicable to race, gender, ethnicity, sexual orientation, encouraging students to attend any program approved by the administration which does not discriminate. The administration provides various perks” to approved groups.  Lauding its non discrimination policy, its policy presumably would open the doors to anyone on the basis of “status” but not “beliefs.”  In other words, the policy discriminates against Christians who foreclose membership from those who do not share their convictions unrelated to their status.. “Beliefs,”not “status,” toward a group should allow membership to anyone who shares those convictions.
Note:  On the entire campus only the Christian group is denied recognition by the Administration. In a concurring opinion, the judge notes the San Diego State policy “marginalizes” some students in clear violation of the University exhortation to diversity.  And the record documents the same dilatory conduct of San Diego State personnel as in Hastings in determining approval as a student group.  For skeptics, the administration knows students all will graduate and go away.

Thompson v. Runnel, 621 F.3d 1007 (9th Cir 2011); & Ocampo v. Vail, 2011 WL 2275798 (C.A. 9)

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The 9th Circuit will not adhere to AEDPA no matter the verbal lashings issued to it by the Supreme Court.  In its latest term, the Supreme Court reversed  the 9th Circuit panel who had granted habeas corpus in three  state court convictions oblivious to the Supreme Court remonstrating the 9th Circuit for employing de novo review insisted of the limitations imposed by AEDPA.  The 9th Circuit quoted the statute in its decisions and then ignored it.

After the end of the Supreme Court term in July, the 9th Circuit issued two more cases destined for reversal.  In Thompson v. Runnel, seven 9th Circuit judges dissented from a decision in a murder case in which the defendant confessed voluntarily prior to Miranda wantings.   After the officers administered Miranda warnings he confessed again.  According to the panel majority, the police deliberately “delayed” reciting the Miranda admonition in violation of a Supreme Court decision objecting to this practice.  There is no evidence the delayed warning was intentional or deceptive.

The numerous dissenting judges wrote another criticism of the majority panel members.  Under AEDPA, state court decisions are reviewed under Supreme Court law effective  at the time the Justices deliver their opinion.  In Thompson, the Supreme Court delivered its “delayed Miranda” opinion five months after the Washington state court filed its original decision.

Here is the latest test of AEDPA as written by the Supreme Court in Harrington v. Richter, 131 S.Ct. 770 (2011): “As amended by AEDPA,2254 (d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no farther. Section 2254 (d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement;” cited in Tio Sessoms v. Runnel, 2011 WL 2163970 (C.A. 9).

In Ocampo v. Vail the prosecution admitted statements from an absent witness arguably inconsistent with the Supreme Court decision in Crawford. The absence of the witness obviously was argued by defense counsel to the jury.  The statement was not interpreted by the 9th Circuit for what the witness said but what he did not say.  The jury heard all the evidence, well aware that one of the witnesses was an accomplice whose testimony was impeached.  The jury heard the inconsistent testimony and voted unanimously for guilty.  The 9th Circuit applied its usual reweighing of the evidence and granted habeas corpus although the Washington courts had affirmed the judgment.

Harrison v. Gillespie, 640 F.3d 888 (9th Cir. 2011; Reversing Harrison v. Gillespie, 596 F.3d 551, (9th Cir. 2010)

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Harrison v. Gillespie is a perfect example why a governor-or a President of the United States-should not appoint lawyers who have never tried a civil or criminal case, never sat as a trial judge and whose only credential is writing law books.  This describes Mr. Liu whom Governor Brown appointed to the California Supreme Court.  Uninformed as to criminal or civil trial practice, Liu will undoubtedly bring his academic policy choices to the Court and decide cases uninformed by the chemistry of a trial.  

Harrison v. Gillespie, a death penalty case from  Nevada State court, illustrates this prediction.  A jury reported to the trial judge it was at “impasse.”  The trial judge questioned the foreman of the jury who reported an inability of the jurors, having voted guilty on the merits, to reach a decision on the death penalty.  The judge questioned the foreman in general terms but did not poll the jury or request the jury to report on the numerical count of their  vote.  Declaring a mistrial, the judge excused the jury.

The defendant appealed to the Nevada courts on grounds the jury was unable to reach a verdict alleging the Double Jeopardy clause of the Fifth Amendment applicable to the states forbade retrial on the unbifurcated penalty phase.  The court rejected this contention.  The defendant filed habeas corpus in U.S. District Court, and the judge denied the petition. Defendant appealed, and a 9th Circuit three judge panel reversed on grounds the judge should have polled the jury.  An en banc court reversed the three judge panel.

The three judge panel had cited a litany of cases in its decision, all irrelevant and unrelated to trial practice.  The Supreme Court has never ruled the trial judge must poll the jury.  Nor has the Court expressed  any formulaic litany for a judge to perform in questioning the jury on their inability to reach a verdict. An en banc panel reversed, noting judges must exercise restraint in speaking with jurors under those circumstances.  Any of their words can be construed as favoring one side, or isolating a juror, or otherwise seeking to compel a verdict.  In the 9th Circuit, no matter what the trial judge says it will lead to a reversal in the event the jury votes the death penalty.

The best practice for the trial judge in “impasse” cases includes initially conferring with all counsel to solicit their recommendations.  Obviously the lawyers will differ.  The court can suggest counsel to document their  objections, or at least place them on the record.  The court must then carefully inquire of the jury foreperson on the general  nature of the impasse without disclosing the numbers for guilt or innocence.  Or the judge may elect to narrowly answer a written question submitted from the jury.

In most cases the personality of the jurors is the cause of the problem. The court should consider the  length  of time in deliberation, the opinion of the foreperson as to the desirability of further deliberations, or some other reasonably based inquiry. Polling the jury is only an option, not a mandate.

The dissent in the en bance decision cites a variety of irrelevant cases.  These cases are fact specific, and the use of common sense is the appropriate rationale.  The dissenting judges, none of whom have trial experience, illustrates its inability to do that. And neither will Judge Liu.
Numerous experienced judges on the Court of Appeal were excellent candidates for the California Supreme Court.  Governor Brown selected an inexperienced law professor who never set foot in a courtroom.