Monthly Archives: June 2012

Knox v. Service Employees Int. Union, Local 1000, 132 S.Ct. 2277 (2012)

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The record of the 9th Circuit in labor law cases parallels its record in criminal law.  Favoritism toward unions was obvious as expressed in Knox v. California Service Employees, 628 F.3d 1115 (9th Cir. 2010). The court in Knox saw no unfairness to non union members when the union announced an increase in dues, in addition to annual dues, to contest anti labor Initiatives.  Under well established U.S. Supreme Court law, a union cannot compel its members who object to political issues to contribute by mandatory payment of union dues. In 1986 the Supreme Court ordered unions to discontinue using dues to support political positions opposed by some of its members, and outlined procedural steps the union must take to assure compliance; Teachers v. Hudson, 475 U.S. 292 (1986); Davenport v. Washington Ed. Assn., 551 U.S. 177 (2007).

In Knox, the 9th Circuit held the court must undertake a balancing test of competing interests, and allowed the union to compel its members to contribute to an increased assessment for political purposes.  The Supreme Court disposed of this absurd argument summarily and reversed the 9th Circuit with instructions for the union – and the 9th Circuit – to follow the law.

Although not a criminal case or one involving Constitutional issues, Knox is another illustration of the ideological bias of the 9th Circuit and adds to the growing number of its reversals.  The currrent term of the Supreme Court will set another record for reversals of the 9th Circuit.  The cost of 9th Circuit reversals, including the death penalty, is enormous, and the volume of 9th Circuit cases so heavy several cases that should have been reversed escaped Supreme Court review.  

Johnson v. Uribe, 685 F.3d 1238 (9th Cir. 2012)

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Defendant Johnson was represented by counsel in a California Superior Court. Counsel failed to explain the consequences of a guilty plea to the defendant pursuant to the decision in Peo.v. Vargas, 223 Cal.App.3d 1107 (1990) but the prosecutor miscalculated the sentence to be imposed.  Citing Vargas, the trial court released the defendant and told him if he returned to court the sentence would be reduced.  The defendant failed to return, and when arrested the court imposed the original sentence.

Defendant appealed, contending ineffective assistance of counsel in not raising the erroneous calculation for sentence.  The California Court of Appeal denied his appeal and the California Supreme Court denied a hearing  Defendant sought habeas corpus in federal court. The Magistrate Judge held a heaing, found counsel ineffective, but also determined the defendant would have accepted the Vargas bargain regardless of defense counsel’s failure to calculate the sentence.  The district court judge agreed, granted habeas corpus and remanded to the superior court to re sentence the defendant. The defendant appealed to the 9th Circuit.

That should have been the end of it.  The 9th Circuit in an opinion that ignores AEDPA and the decisions of the U.S. Supreme Court on plea bargains, dismisses the findings of the Magistrate Judge, overrules the California Court of Appeal and California Supreme Court. The 9th Circuit panel grants habeas corpus, orders the sentence vacated and returned to the Superior Court to proceed at the pre plea stage of the proceeedings.

This case has no precedential value at all and should be reversed en banc.  As a practical matter, on remand to the Superior Court the prosecutor will either no longer offer the same plea and go to trial.  If possible, the prosecution will amend the Information to add additional counts or enhancements. If found guilty, the defendant will probably receive the same or higher sentence.

 

Delia v. City of Rialto, 682 F.3d 1213 (9th Cir. 2012) (on remand)

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Although this case is relatively unimportant in most contexts, Delia v. City of Rialto illustrates another reversal of the 9th Circuit.  But from a cursory glance, if you read the citation above, you would never know the Supreme Court reversed the 9th Circuit.

The plaintiff Delia originally filed a 1983 claim  against the City of Rialto, its employees, and private contractor Steve Filarsky hired by the City. The district court ruled all the City employees and private employee Filarsky were entitled to immunity.  On appeal the 9th Circuit applied immunity to all governmental employees except Filarsky. The Supreme Court reversed, holding Filarsky was also entitled to immunity.

The original name of the case in the district court, and in the 9th Circuit, was Delia v. City of Rialto, et. al including defendant Filarsky, but in the Supreme Court the case was only named Filarsky v. Delia 2012 WL 1288731.  After the Supreme Court reversed and remanded, the 9th Circuit issued an order on June 19, 2012: “In light of the United States Supreme Court’s decision in Filarsky v. Delia (cite) the judgment of the district court is affirmed.  The mandate shall issue forthwith.  Remanded;” Delia v. City of Rialto, et al., 2012 WL 2308916.” The record is correct-and misleading.

In its June 19 order remanding to the district court, the 9th Circuit only mentioned the name of the Supreme Court decision entitled Filarsky v. Delia, and not the previously dismissed case in the district court under the title of Delia v. City of Reno. The 9th Circuit on remand to the district court says nothing about its own reversal by the Supreme Court, and the reader would never identify the reversed names on the opinion. In other words, the  June 19 order remanding to the district court, the 9th Circuit indirectly affirmed the district court case previously applying immunity to all parties without noting its own reversal.

Add this case to the record number of reversals in the 9th Circuit.

See Supreme Court decision in Filarsky v. Delia, below,

Briggs v. Grounds, 682 F.3d 1165 (9th Cir. 2012)

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When the Supreme Court in Batson v. Kentucky, 476 U.S.79 (1986) decided that prosecutors could not excuse jurors from serving on a criminal case if the ground for a peremptory challenge was race based, the Justices opened up another opportunity for the 9th Circuit to savage forests. In the first place, the appellate court must now read the entire voir dire transcript, in addition to the trial record, to determine if the prosecutor excused a juror on pretextual grounds.  Because the appellate court reads a cold record, and several 9th Circuit judges have never tried a criminal case, the transcript loses the entire “chemistry” of criminal cases in general and voir dire in particular.  The record will not show juror body language, the tone of answers, the indecisive answer, or a host of other character traits evident not only to the prosecutor but the trial judge who must rule on a defense motion alleging a prosecution peremptory challenge based on race.The Supreme Court has repeatedly reversed the 9th Circuit in these cases and reminded the appellate court that the trial judge is in the best position to evaluate the juror, and the questioning by the prosecutor.
 One of the legal tests formulated for determining prosecutorial bias requires the court to undertake a “comparative analysis” of questions asked of all the jurors on voir dire.  Of course this test is highly subjective and subject to the idelogical perspective of the reader. In addition, some jurors are obviously more acceptable and do not need the same kind of questions asked of others.

No better case illustrates this point than the dissent in Briggs v. Grounds. The majority of the three judge 9th Circuit panel upheld the state court trial judge who denied the defense motion alleging the prosecutor excused a juror on racial grounds. The dissenting judge, selectively reading the voir dire transcript, concluded – on habeas corpus – that the state court trial judge, the California Court of Appeal and the district court were wrong in not finding prosecutor bias.  Reluctantly rendering lip service to AEDPA deference (questionably applicable to “comparable analysis” in the 9th Circuit), the dissenting judge on appeal simply read the transcript, ignored the obvious reasons for excusing the juror, and invented an explanation of bias. In essence, the dissenting judge applied de novo review of the state court and ignored the rule of deference under AEDPA.  This practice is routine in the 9th Circuit.

This case illustrates again the federal interference with state courts regardless of repeated Supreme Court decisions reprimanding decisions comparable to the dissent. Fortunately the 9th Circuit majority decision understood the rationale of the prosecutor, the approval of the trial judge, the district court judge, and California Court of Appeal. Petition denied.

Phillips v. Ornoski, 673 F3d 1168 (9th Cir. 2012)

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Comparable to many cases deserving of the death penalty, the facts are chilling.  The defendant Phillips explained a financial scheme to two men enabling them to defraud other people of their money.  In order to facilitate the fraud, Phillips secured cash from both men who agreed to the scheme.  At some point, the two men delayed paying money allegedly owed to Phillips but they agreed to meet and talk about it.

Phillips and a female companion drove to a remote location and met the two men who were seated in their car.  After a few words were exchanged among them, Phillips pulled out a handgun and shot both men several times.  He then poured gasoline on them and lit their clothes on fire. One man fled in burning clothes, but Phillips ran him over in his car. Phillips searched both men and took their wallets. Miraculously, one victim lived but the other man died.

Phillips and his companion fled the state, were arrested and charged with murder of one man, attempted murder of the other man, and robbery. In addition to testimony by the victim, the prosecution offered testimony by the female accomplice but without disclosing a promise of leniency to her.  Evidence also was submitted that Phillips had arranged for a “hit man” to kill the witnesses, and had admitted killing one of the victims. Phillips testified to an alibi but admitted he lied. The robbery charge to the jury was required for the special circumstance of felony murder warranting the death penalty.  The jury voted guilty on all counts, confirmed the special circumstance, and approved the death penalty.

On appeal of the conviction to the California Supreme Court Court, Phillips alleged the prosecutor had failed to disclose benefits promised to his female companion in exchange for her testimony.  The state court affirmed. Phillips filed habeas corpus in district court.  Denied.  On appeal, the 9th Circuit reversed on grounds of ineffective counsel and returned the case for an evidentiary hearing; Phillips v. Woodford, 267 F.3d 966 (9th Cir.2001). The Supreme Court reversed the 9th Circuit.  The 9th Circuit decision was so absurd that the reversal was obvious.

Phillips appealed the original district court decision denying his petition of habeas corpus to the 9th Circuit.  The 9th Circuit panel 2-1 majority affirmed on the merits of the counts alleged (compelled to do so by the Supreme Court decision) but reversed the death penalty.  The grounds alleged for reversal of the death penalty were the same as alleged in state court: failure of the prosecutor to disclose benefits to a prosecution witness in exchange for her testimony as an accomplice.

In one of the most inexplicable decisions ever written, the panel affirmed the merits of the case despite prosecution failure to disclose commitments to the witness, but invoked  the same reason for reversing the death penalty.   Here is the exercise in verbal prestidigitation: Under California law, felony murder is proven only if the death of the victim was committed to facilitate the robbery. Ordinary murder, committed by conduct unrelated to theft, does not constitute felony murder; Peo. v. Green, 27  Cal.3d 1 (1980).

The 9th Circuit majority used the Green case to hold that the murder and attempted murder by Phillips was not to facilitate robbery.  Just pure murder.  Therefore, the special circumstance instruction requiring felony murder had not been proven in the absence of evidence that Phillips robbed the two men.  Of course Phillips rummaged through the clothes of his victims and took their wallets.  Apparently that doesn’t count.

The dissenting judge disagreed with the majority of the panel.  Remarkably, no other judge sought rehearing.  This case is another instance of a federal court overruling the California Supreme Court, the jury, and a federal district court judge.  The decision, in a trial of overwhelming evidence, invokes an arcane legal distinction to invalidate a death penalty.  According to the panel, failure to disclose a pre trial commitment to a witness does not affect the merits but it does affect the penalty. As the dissenting judge skillfully writes: “The question the majority addresses seems to be ‘is there any conceivable, speculative possibility we can think of that would make Phillips guilty but without the special circumstance?'” 

This case was tried in 1977.  Affirmed by the California Supreme Court and a U.S. District Court judge;  wrongly reversed initially by the 9th Circuit panel whose decision was reversed by the Supreme Court; and in 2012 the panel unearthed an insignificant  and meaningless legal distinction to vacate the death penalty . Even if correct, and the prosecutor faulted, the overwhelming evidence justified the jury decision.

Coleman v. Johnson, 132 S.Ct. 2060 (2012)

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Not a good week for the 9th Circuit.  The Supreme Court summarily reversed four 9th Circuit cases on immigration.  The 9th Circuit record on immigration parallels its record on criminal cases.  The volume is so excessive the Supreme Court cannot review all 9th Circuit mistakes.

Coleman v. Johnson is not a 9th Circuit case but it sends a message to that court.  On collateral review, the 3d Circuit had reversed a Pennsylvania state court appellate decision confirming a jury trial verdict.  Defendant alleged that the evidence at trial was insufficient to convict him of murder, citing the Supreme Court case of Jackson v. Virginia, 443 U.S. 307 (1979).  This venerable case reversed a conviction obtained by no supporting evidence and, according to the Supreme Court, violated due process.  The Jackson test for reversal on federal habeas corpus is nebulous at best: “only if a rational trier of fact could not have agreed with the jury.” And: “whether [the finding of the jury] was so insupportable as to fall below the threshold of rationality.” The 9th Circuit can easily evade that language.

In applying that test the Supreme Court in Coleman ordered federal courts on collateral review to consider the jury verdict and the state appellate court decision in addition to AEDPA.  The Court particularly cites a 9th Circuit case it reversed three times on grounds the appellate court found insufficiency of evidence as an example of an erroneous application of the Jackson test; Cavazos v. Smith, 565 U.S. 1 (2011)

Although the Jackson test is conceptual and subjective, the Supreme Court is sending a message to all circuit courts, and the 9th Circuit in particular, to strictly apply the facts of the case and the Jackson rule with deference to state courts, juries, and AEDPA.

As an added note: after the Supreme Court reversed the 9th Circuit in Smith for the third time, the appellate court engineered clemency for the defendant through the office of Governor Jerry Brown.  Within three weeks after the third reversal was remanded to the 9th Circuit.  

Moss v. U.S. Secret Service, 675 F.3d 1213 (9th Cir. 2012)

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In a case noteworthy for its irrelevance and the absence of useful precedent, this case stands for nothing more than another intrusive federal court decision of no value to anyone.  The plaintiffs alleged police and Secret Service agents violated their First Amendment rights because they treated their anti- President Bush crowd differently than the pro- Bush crowd during a presidential appearance in Florida.  According to the Complaint, police kept anti- Bush demonstrators further away from Bush than demonstrators who supported him.  Denying the defendant’s motion for summary judgment, this case is actually going to go to trial. And the court held the Secret Service agents are not entitled to immunity at this stage.  Of course the 9th Circuit panel knows more about protecting the President than the Secret Service.

The court first summarizes cases on viewpoint discrimination and concludes the protesters were discriminated against on a public street.  They were ordered to stand further away than Bush supporters.  That’s the entire case.

Of course this 9th Circuit panel ignores the assassination of  Ronald Reagan.  It may come as a surprise to this panel that people who are opposed to people of their policy are more likely to cause trouble than  those  who do not.

What does this case establish?  Nothing.  Every political demonstration is different, and the job of the Secret Service is to protect the President.  What are they supposed to do in any other case at any other time and under entirely different circumstances?   Measure the distance between demonstrators? How is this case  relevant to anything is a good question.