Ortiz v. Yates, 704 F.3d 1026 (9th Cir.2013) reversing District Court

One of the most difficult criminal cases for the prosecution to try are those involving domestic violence. Prosecutors often discover that after the passage of time between infliction of injury and trial the witness decides not to prosecute.  Advising the witness to the consequence of dismissing the case, i.e., further violent conduct or retaliation, is not always successful. The indecision to testify occurs even at trial.  Whether the witness will testify and, if so, to what extent is always an issue. Ortiz v. Yates is an example.  And another state court case reversed on habeas corpus.

Couple this indecision of a witness with an appellate judge who has never tried a criminal case, and the outcome is disastrous. In Ortiz, the witness appeared at the police station, bruised and wounded, to report her husband caused the injuries, and she demanded a restraining order. Her statement was recorded on notes by a police officer but prior to trial the witness refused to talk to a DA investigator. She submitted an inconsistent declaration of the evidence, and her testimony at trial was equivocal. On her cross examination the court refused to allow evidence of an alleged pre trial threat by the prosecutor that she would confront perjury if she was untruthful.   

Obviously the jury understood she was a reluctant and recalcitrant witness, but the photos taken by police confirming her injuries, and the interviewing officer’s notes were more than sufficient to convince the jury she had been assaulted.  The prosecutor also introduced evidence of the defendant’s prior conviction-for the same offense.  The jury found the defendant-who did not testify-guilty. 

This trial occurred 13 years ago; the California Court of Appealed affirmed the convicton; the U.S. district judge denied the petition for habeas corpus.  The 9th Circuit 2-1 panel discarded the Antiterrorism and Effective Death Penalty Act (AEDPA) with the usual excuse that the trial court refusal to admit testimony about an alleged prosecution threat violated the Sixth Amendment right of confrontation and cross examination of witnesses..This “constitutional error” was an unreasonable application of Supreme Court precedent under AEDPA.

The inability of an appellate judge to understand domestic violence trials is patent.  The jury could tell the witness was ambivalent, inconsistent, and indecisive .  No one needs a law degree to understand the chemistry of domestic violence trials.  But the majority panel discovered  the Sixth Amendment right to confrontation to ramp up the ability to find constitutional error.  Obviously 13 years later this case will never be retried.

This case is, at best, a statutory error.  Arguably the witness might have answered that the prosecutor threatened her, and the trial judge should have permitted the testimony. The prosecutor had rebutted this accusation in a pre trial declaration. Other than disallowing this single question the court allowed full cross examination of the witness. But to raise Sixth Amendment error that failure to allow a single question, even if relevant, could cause a court to issue a writ of habeas corpus on collateral hearing despite the rulings of the California  Court  of Appeal and the district  court judge is ludicrous.  The dissent thought so too. 

Is it time to amend AEDPA?

Lambright v. Ryan, 698 F3d. 808 (9th Cir. 2012)

Those who opposed the death penalty at the November election argued the budget deficit justified ending capital punishment because of the excessive cost of capital cases.  That cost is attributable to one source never discussed: the Ninth Circuit.  To illustrate:  (Paraphrasing the Ninth Circuit panel). In March,1980, Lambright and Smith (another defendant) were traveling across the country with Lambright’s girlfriend. Smith complained to Lambright about the absence of  a traveling companion. In response, Lambright said they would find him a girl. Lambright also said that “he would like to kill somebody just to see if he could do it.”  The trio encountered a hitchhiker, Sandra Owen, and offered her a ride. Owen accepted and got in the car. Smith raped Owen in the back seat of the car on the way to a mountain site where they exited the vehicle. Smith then raped Owen a second time and thereafter began choking her. Lambright then stabbed Owen numerous times while Smith restrained her. Finally, Lambright struck Owen in the head with a rock. Owen died as a result of  her injuries.

Lambright, convicted of murder and kidnapping, was sentenced to death.The  media never report the facts in capital cases, but this crime is only one example of a savage and brutal killing of an innocent woman that warrants the death penalty. On direct appeal the Arizona Supreme Court affirmed the conviction. Lambright filed his federal petition in 1987 unencumbered by AEDPA.  The district court denied his petition.  On appeal the 9th Circuit reversed and remanded for an evidentiary hearing on Lambright’s claim alleging ineffective assistance of counsel; 191 F.3d. 1181(1999); Another  hearing in the district court, reversed and remanded on appeal ; 220 F.3d 1022 (2000); Another hearing in the district court, reversed and remanded on appeal; 241 F.3d 1201 (2001). Another  hearing in the district court reversed and remanded on appeal; 490 F.3d 1103 (2007); Another hearing in district court reversed and remanded on appeal; 698 F.3d 808 (2012).

And this record, deplorable as it is, compares with numerous other 9th  Circuit reversals after state supreme courts have confirmed the conviction and denied post judgment relief.  In the latest case at 698 F.3d 808 the argument is a “discovery issue”  at an evidentiary  hearing on alleged ineffective assistance of counsel.  The 2-1 majority writes endlessly on trivia that should have been decided long ago.  Lambright has never alleged “factual innocence” on the merits.  What jury would not vote the death penalty regardless of what counsel did?   According to the majority opinion, counsel failed to submit a psychiatric report at trial as mitigating evidence.

Convicted in 1987.  In court in 2012.



Ryan v. Gonzales, 133 S.Ct. 696 (2013)

The Supreme Court opened the new year by unanimously reversing two 9th Circuit cases within one week of January 1.  Unsurprisingly, Ryan v. Gonzales involved the death penalty, a case written by a 9th Circuit judge who has never affirmed a capital case in the last decade. (The other Supreme Court case involved polluted water.)

Although the Supreme Court decision does not include the date of Gonzales’ conviction for the crime of murder, he was sentenced in 1999 for brutally stabbing a husband and  wife during a burglary.  Gonzales was sentenced to death, the case affirmed on appeal in state court, and his round of state collateral reviews exhausted. Defense counsel for Gonzales filed habeas corpus in U.S. district court.  While the petition was pending, counsel filed mandate in the 9th Circuit alleging his mentally incompetent client could not assist him in preparing the petition and sought a stay of proceedings.

Instead of conforming to AEDPA governing federal habeas review of state court rulings, the 9th Circuit panel in Gonzales applied 18 U.S.C. 3599, a little known federal statute  authorizing payment of funds to habeas corpus counsel in capital cases.  The statute says nothing about mental incompetence or delay of proceedings, but the 9th Circuit held an inmate is entitled to effective assistance of counsel in habeas corpus cases.  623 F.3d 1242 (9th Cir. 2010). The panel cited Rohan v. Woodford,  334 F.3d 803 (9th Cir. 2003) and  Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009) as precedent for their opinion. Both these  cases held the district court must stay habeas corpus proceedings of a mentally incompetent inmate until competence is restored.  In other words, eliminating the death penalty.

Neither the statute nor the 6th Amendment right to counsel say anything  about approving appellate court delay attributable to mentally incompetent inmates. As the Supreme Court points out, review of habeas cases by counsel differs from legal assistance of counsel at trial, and includes only review of the state court record.  Cullen v. Pinholster, 563 U.S._There is no need for input by the inmate.  Moreover, in habeas proceedings, there is no right to counsel at all. Murray v. Giarratano, 492 U.S. 1 (1989).

 Not only did the Supreme Court reverse the 9th Circuit, it also specifically reversed the two precedents, Rohan and Nash, on which the 9th Circuit relied for its opinion in Gonzales. In all three cases the 9th Circuit panels tried to avoid AEDPA and relied on a statute unrelated to any question of assistance of counsel or staying proceedings.  In other words, the Supreme Court in a single case reversed the 9th Circuit in all three cases.