Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012)

Phillips was convicted in 1977. After the California Supreme Court affirmed his conviction, he filed habeas corpus in federal court.  Denied by the District Court judge, the 9th Cricut reversed and ordered an evidentiary hearing. The District Court held a hearing and filed a 61 page order denying the petition.  On appeal, a 2-1 panel majority of the 9th Circuit reversed on the most unjust, speculative and specious grounds possible.

The evidence established Phillips lured two men to a deserted location, incapacitated both, and set them on fire.  When Phillips discovered one man still alive, he shot him five times and ran over him with his car.
One Coleman,  a female aacquaintance of Phillips, and present at the scene, testified to the events in addition to the victim who had been set on fire.  The victim, an eyewitness, testified dramatically to the event and was corroborated by the female accomplice.

The accomplice received the benefit of prosecutorial largess but the prosecutor did not reveal the secret deal he had arranged with her counsel.  According to the majority, this failure of potential impeachment spared the defendant from a finding of murder with special circumstances related to robbery, and set aside the death penalty thirty five years after the verdict.

The dissenting judge skewers this outrageous opinion.  He reminds the majority this case is a collateral proceeding entitled to a state court presumption of correction in its decision.  The California Supreme Court affirmed the verdict specifically rejecting the ground of the majority opinion.   As did the District Court.
The jury heard the eyewitness testimony of the victim shot five times, set on fire and run over by a car.  The defendant lured both men into a deserted location, urging them to bring money.  The victim testified the defendant took his wallet.  That is enough for felony murder.

The majority focuses on the failure of the prosecution to disclose it had arranged sentencing benefits for the  woman, although she testified she expected “consideration” for her testimony, but no one had informed her of any grant of immunity or leniency.  Assuming the prosecutor did not disclose potentially impeaching evidence, the defense counsel at trial argued she must have some kind of reason for testifying as a witness rather than a co – defendant.  The judge instructed the jury to assume “distrust of an accomplice.” And the defendant testified to to an alibi that was proved to be a lie.

This case is another illustration of a judge manipulating the testimony, engaging in speculation, and assuimng the jury is composed of idiots.  The evidence is overwhelming but somehow this judge must defer, or prevent, the death penalty.   The dissenting judge  barely restrains his anger at this indefensible decision by the two judge majority.  This case will go en banc.


James v. Ryan, 679 F.3d 780 (9th Cir. 2012)

In an opinion decided by judges Berzon and Fletcher, the “usual suspects” in criminal cases, the 9th Circuit panel set aside a death penalty case on the usual grounds of “ineffective counsel.”  The defendant was convicted in 1981 based on overwhelming evidence of a gruesome and vicious murder.  In 2012, twenty-three years later, and despite the repeated demands by the Supreme Court to conform to the Congressional act of AEDPA, this panel found ineffective counsel.
Apparently this defense did not occur to anyone else until this petition for habeas corpus was filed almost a quarter century after the trial.  James filed repeated duplicate petitions in Arizona state court and in federal court arguing innumerable grounds-all denied. Until the case arrived in the 9th Circuit.
Unless the State of Arizona seeks review in the Supreme Court, the ability to present evidence necessary to sentence James is almost impossible.  In the first place, one of the witnesses who testified against James was a juvenile, and sentenced to imprisonment until he turned eighteen.  The prospect of finding him, assuming  Arizona is able to subpoena him, and convincing him to testify, is slim.
The facts of this case warrant the death penalty regardless of James’ childhood, his drug use and the usual psychiatric testimony. James was not under the influence of any drug at the time of the murder; denied any opportunity to relent from his decision to murder the victim, and showed no evidence of remorse.

The 9th Circuit record of death penalty cases reversed on collateral review continues.  With one exception (a case recently decided after the Supreme Court had thoroughly lashed the 9th Circuit for applying the wrong law for the last decde), the 9th Circuit has not affirmed a single death sentence in a decade.

Messerschmidt v. Millender, 132 S.Ct.1288 ( 2012)

Another reversal of the 9th Circuit puts it on track for breaking all previous records.
Shelly Kelly decided to revoke her relationship with one Jerry Brown.  As she was leaving their apartment, he screamed at her, grabbed by the hair, and bit her. She escaped and ran to her car only to find Brown standing in front of the vehicle holding a shotgun. She ducked down, accelerated and escaped again, but only after Brown fired five shots at her.  She reported the assault to law enforcement.
A deputy sheriff did an exhaustive search of records; found Brown to have been convicted of violent felonies; had used firearms; was a gang member.  The deputy filled out a comprehensive affidavit and search warrant of the house where he believed Brown was hiding and requested a search warrant for the gun and other weapons; showed the warrant to his supervisor who approved; approved by a deputy DA, and a magistrate issued the warrant.   Although other occupants were inside the house, the search did reveal either Brown or the shotgun.  He was arrested two days later.
Plaintiff (esate householder) filed a 1983 motion alleging Fourth Amendment violations on grounds the warrant was too broad.  The district court agreed denied qualified immunity to the officers; reversed by the 9th Circuit panel; reversed en banc on grounds the deputy should have known the warrant was too broad in seeking firearms in general, not just the one used by Brown in his assault.
Reversed by the Supreme Court.  The officer submitted a warrant consistent with his information that Brown was a gang member and a user of firearms. Ms. Kelly told him the address where he resided. The officer’s supervisor approved the warrant, as did  a deputy DA. A magistrate issued the  warrant.

The lawsuit is frivolous to begin with.  No one was injured prior to, during, or after the search.  No damage occurred inside the property.The officers had the correct address and were authorized by a magistrate to search the apartment. The Fourth Amendment does not require officers to have a law degree.  The affidavit contained abundant information and warranted probable cause to search the apartment. And, said the Supreme Court, a magistrate issued the warrant.  Nothing to show any illegal or negligent conduct during the search.

Apparently the 9th Circuit thinks it should deny qualified immunity to the officers despite the approval of superior officers, a deputy DA and a magistrate.  The officers did nothing unreasonable from the drafting of the affidavit and warrant to the entry and search.  Fortunately the Supreme Court understood this.