In 1979 Schad was convicted of first degree murder and sentenced to death. His conviction was affirmed by the Arizona Supreme Court, and his state and federal habeas petitions denied in twelve subsequent years. In 2010 the 9th Circuit on habeas corpus reversed the conviction on grounds Schad should be allowed an evidentiary hearing to determine whether he proceeded diligently in his ineffective counsel claim; 606 F.3d 102 (9th Cir. 2010).
The Supreme Court granted cert., reviewed the record, and in a two line opinion reversed and remanded to the 9th Circuit for reconsideration in light of Cullen v. Pinholster (reviewed in an earlier post). The Supreme in Cullen had reversed the 9th Circuit for ignoring AEDPA 42 U.S.C 2254d (for years) by ignoring its provisions. The 9th Circuit had ignored AEDPA in Schad.
The 9th Circuit rewrote its opinion in accord with the Supreme Court order and denied habeas corpus on the merits and on sentencing. Some of the 9th Circuit judges (including the ones who wrote the original opinion ) may finally be getting the message. This decision in Schad v. Ryan is the first time in a decade the 9th Circuit has affirmed a death penalty case.
Note: This case was decided on November 16, 2011 and decided by the 9th Circuit in 2011. For a 1979 conviction. The current opinon is the third amended decision rendered by the 9th Circuit, having been reversed by the Supreme Court.
A jury convicted Smith of violating a California statute known colloquially as “baby shaking.” Experts for prosecution and defense testified to the cause of death, obviously disagreeing. The trial judge denied a motion for new trial, the California Court of Appeal affirmed the conviction, and the California Supreme Court denied review. On federal habeas corpus, the district court denied the petition. The 9th Circuit panel reversed, contending the evidence insufficient to warrant a verdict of guilty. As one of the dissenting judges on the 9th Circuit panel noted, in effect, “why do we have juries?”
The Supreme Court reversed. On remand, without any further reasoning and ignoring the Supreme Court direction to consider other case law, the 9th Circuit reached the same result; on review of that decision in the Supreme Court for the third time, the Justices reversed the 9th Circuit 6-3.
This case is one of the most blatant examples of 9th Circuit manipulative jurisprudence. The Supreme Court agreed in this language: “The panel ignored AEDPA . . . Despite the plenitude of expert testimony in the trial record concluding that sudden shearing or tearing of the brainstem was the cause of [the child’s] death, the Ninth Circuit determined that there was ‘no evidence to permit an expert conclusion one way or the other on that question because there was no physical evidence of . . . tearing or shearing, and no other evidence supporting death by violent shaking . . . The [9th Circuit] said that the State’s experts ‘reached [their] conclusion because there was no evidence in the brain itself of the cause of death.‘ The court concluded that because ‘[a]bsence of evidence cannot constitute proof beyond a reasonable doubt, the California Court of Appeal had unreasonably applied this Court’s opinion in upholding Smith’s conviction. That conclusion was plainly wrong.”
The Ninth Circuit’s assertion that these [State] experts “reached [their] conclusion because there was no evidence in the brain itself of the cause of death” is simply false (italics added). There was (italics in original) evidence in the brain itself. The autopsy revealed indications of recent trauma to Etzel’s brain (the dead child), such as subdural and subarachnoid hemorrhaging, hemorrhaging around the optic nerves, and the presence of a blood clot between the brain’s hemispheres. The autopsy also revealed a bruise and abrasion on the lower back of Etzel’s head. These affirmative indications of trauma formed the basis of the experts’ opinion that Etzel died from shaking so severe that his brainstem tore.”
And this by the Supreme Court: “When the deference to state court decisions required [by AEDPA] applied to the state court’s already deferential review, there can be no doubt of the Ninth Circuit’s error below. In light of the evidence presented at trial, the Ninth Circuit plainly erred in concluding that the jury’s verdict was irrational, let alone that it was unreasonable for the California Court of Appeal to think otherwise . . . Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State’s theory was correct. The jury decided that question, and its decision is supported by the record.”
Bluntly stated, the Supreme Court told the 9th Circuit panel it had misrepresented the evidence, intentionally ignored the evidence, and abandoned its role as an appellate court. This case is another verbal lashing the Supreme Court repeatedly administers to the 9th Circuit.
Note: except for the word “was” in the Supreme Court opinion, the italics were added.
The plaintiff filed a Fourth Amendment violation and 42 U.S.C. 1983 Complaint against a County human resources employee and a deputy sheriff who interviewed a student on school premises to determine whether she had been sexually molested. The 9th Circuit held that the Fourth Amendment requires police to obtain a search warrant before interviewing a student in school who had alleged a sexual violation, but no liability attached on grounds the officers were entitled to qualified immunity; Green v. Camreta, 588 F.3d 1011 (9th Cir. 2009). The Supreme Court granted cert. on the Fourth Amendment issue only.
The Justices, stunned at oral argument to understand the Fourth Amendment basis for this decision, realized if it refused to decide the case already resolved in favor of the officers by qualified immunity, the principle announced by the 9th Circuit requiring a warrant to seize and search the student would stand. Carving an exception to its general rule in avoiding Constitutional issues unless necessary, the Supreme Court vacated the Fourth Amendment decision, despite the officers having prevailed on immunity, in order to avoid the underlying 9th Circuit rationale to become precedent in this case mandating a search warrant. Camreta v. Greene, 131 S.Ct. 2020 (2011).
On remand, the 9th Circuit insisted on allowing the plaintiff to proceed without the Fourth Amendment issue but could continue its 1983 case; Greene v. Camreta, 2011WL 514333 (9th Cir. 2011. Without the Fourth Amendment issue, and the defendants prevailing on qualified immunity, there is nothing left to this case. Yet the 9th Circuit panel remanded the case to the District Court on the 1983 case, again evading a clear Supreme Court decision and wasting judicial resources.