Murdaugh v. Ryan, 724 F.3d 1104 (9th Cir. 2013)

Several weeks go the Supreme Court reversed the 9th Circuit on grounds of abusing its discretion by manipulating the record.  An appellate court “abusing discretion?”  Those words are nothing compared to the appropriate characterization of the 9th Circuit decision in this case.  In one of the most vicious, depraved, and heinous crimes ever committed, this one exceeds any other case.

The defendant Murdaugh threw the victim into the trunk of his car where he remained for several hours.  After opening the trunk, Murdaugh slammed a meat tenderizer onto the victim’s skull, picked up a metal jackhammer and thrust it into the victims’s face and skull. The defendant severed both hands and fingerpads from the victim, severed his head from the body, pulled out all his teeth to avoid identification, threw  the head and body into separate locations and covered them with horse manure.

After Murdaugh’s arrest and conviction, the trial judge ordered a competency hearing, and the doctors testified he was competent to plead guilty to this crime.  Murdaugh had also committed a previous murder of another victim by beating him to death.  At the trial in the instant case Murdaugh pled guilty, refusing to present any mitigating evidence at the penalty hearing and  was sentenced to death. The record establishes the trial court went to great lengths to apply the appropriate sentence in considering aggravating and mitigating evidence.

On direct appeal the state court affirmed the plea, sentence, and subsequently denied post conviction relief. The U.S. district court denied a petition for habeas corpus and the defendant appealed   The 9th Circuit opinion, written by the same judge who has vacated every death penalty case he served on  directly or en banc, not only criticized the state court proceedings but left some issues open for further argument after remand for further sentencing.

The panel thought the evidence of Murdaugh’s extensive drug use insufficiently considered  by the trial court as a mitigating factor. But Murdaugh submitted no mitigating evidence, refusing to do so. The  9th Circuit panel cited the records of the “competency hearing”  previously held to suggest the extensive drug use relevant as a mitigating factor.

Aside from that, this is an AEDPA case entitled to ssssstataecourt deference but its application completely absent from the decision except at the beginning of the opinion and never referenced again. The decision in this case is not only an abuse of discretion it is reprehensible.  No juror in the world would consider leniency to a man who engaged in the  despicable conduct described above.  And not just this savage murder but the one committed before that.  Does this panel think two murders is not enough for the death penalty?

This decision  is so irresponsible that an en banc hearing should be unanimous in favor of reversal.     

 Note: this case was subject to the Supreme Court decision requiring a jury to find facts warranting the death penalty.  Without discussing this procedural rule, the judge made the findings of fact under a revised state law in this case.

Hazle v. Crofoot, 727 F.3d 983 (9th Cir. 2013)

Some of the 9th Circuit judges hold an innate ability to Constitutionalize claims that are nothing more than ordinary torts.  Hazle was imprisoned for drug violations and released on parole contingent upon his participation in an addiction control program.  His parole officer assigned him to a program but Hazle refused because his belief as an atheist foreclosed participation in any program referencing God or a “higher power.”  In his transfers to various addiction control organizations, none had secular programs and he repeatedly objected to their religious element in treatment.  The parole staff lacked any secular treatment program and returned Hazle to prison where he served 100 days before his release.

Hazle filed his section 1983 claim alleging violation of the First Amendment Establishment Clause and sought compensatory damages.  The trial judge agreed that parole officers could not compel Hazle to participate in a religious program and entered judgment in his favor on the issue of liability against the State. The jury heard the evidence on damages, the trial court having informed jurors that liability has already been established, and their only role was confined to compensatory damages.  The jury found zero damages.  The district court judge denied a motion for a new trial. Hazle appealed.

This case is nothing more than a simple tort of false imprisonment, if anything.  But the 9th Circuit panel, citing  a Supreme Court case, held that if liability is established on a section 1983 claim then compensatory damages are mandatory. Smith v. Wade, 461 U.S. 30 (1983).

The  panel quoted the language in Smith that if a section 1983 claim established liability, compensatory damages are “required.”  That is not what Smith held.  In Smith, the Supreme Court was discussing the legal difference between punitive damages, a remedy discretionary with the jury, and compensatory damages awarded contingent on the extent of the injury.  The Supreme Court did not say compensatory damages were “required” just because liability had been established.  “[O]nce liability is found, the jury may award damages “in an appropriate amount to compensate the plaintiff for his loss; Smith.  That is what the jury did.

This decision is remarkable.  The panel does not like the verdict so the trial court must retry this routine absurd case. If a jury concludes no compensatory damages are awarded, even if liability had been established, that verdict should stand.  In this case Hazle alleged emotional distress. No wonder the jury found no damages.  


Jackson v. Nevada, 133 S.Ct. 1990 (2013)

HIdden away in a tiny sentence of the Daily Journal newspaper (California), the 9th Circuit panel wrote “in accord with the Supreme Court’s opinion of June 3, 2013 as well as the resulting  judgment . . . the district court’s denial of Jackson’s habeas petition is AFFIRMED (caps in original). This sentence infers the 9th Circuit affirmed the district court – which had denied the petition for habeas corpus.  The 9th Circuit panel had reversed the district court denial and granted the petition.  The Supreme Court is reversing the 9th Circuit decision written in Jackson v. Nevada, 688 F.3d 1091 (2012).  Another fact omitted by the panel. 

The facts in this case of sexual assault are undisputed for purposes of this blog.  After Jackson’s conviction in a Nevada state court, and the judgment affirmed on direct appeal, he filed a habeas corpus petition in federal court alleging the trial court had refused to accept written evidence that the victim had recanted her accusation of rape and fabricated the evidence. (She testified to having been threatened). In addition, the defendant had sought to submit evidence that the victim had reported prior allegations of sexual abuse by the defendant but the police could not find corroborating evidence.  The trial judge allowed cross examination on these issues but would not admit extrinsic evidence on grounds the Nevada statute does not permit evidence of “conduct to prove character.”

The U.S. District Court denied the habeas petition. On appeal, the 9th Circuit panel found a Sixth Amendment Confrontation Clause excuse when the trial judge prevented the defendant from providing a defense by refusing to permit extrinsic evidence to “balance interests.”  The panel granted the petition. On certiori, the Justices unanimously reminded the 9th Circuit in a per curiam opinion that none of the Supreme Court cases holds this position, and the vast majority of states refuse to allow  “conduct to prove character” evidence to avoid diverting jurors from focusing on collateral issues at trial.

Jackson hardly qualifies as a benchmark case. Aside from burying its reversal in one misleading sentence, the 9th Circuit attempts to “Constitutionalize” cases and stretch the law beyond its boundaries. The Supreme Court has reversed the 9th Circuit repeatedly, including one case asserting the appellate court had “abused its discretion.”  The 9th Circuit evades AEDPA, formulates a liberal immigration policy, writes innumerable reversal of death penalty cases, and holds an anti law enforcement bias. Most of these judges have never tried a case and know nothing about trial practice.  Appointing judges with no trial experience produces opinions comparable to some of those on the 9th circuit.

Not all judges of the 9th Circuit write controversial opinions, and their dissents are as scorching as those of the Supreme Court.  And the Supreme Court in Jackson reminded the 9th Circuit of its wrongful appication of AEDPA. Again.

Aguilar v. Woodford, 725 F.3d 970 (9th Cir. 2013)

The 9th Circuit panel who wrote this opinion have renamed the court.  They are now the 9th Circuit trial court. And the opinion is written by the usual suspects who have never tried a criminal case.  Not only did the panel re try the case on habeas corpus and ignore AEDPA, they brilliantly know more about the case than the California Court of Appeal, the California Supreme Court (and the U.S.District Court judge who denied the petition for habeas corpus) who heard the case on direct appeal and affirmed the verdict of “guilty.” 

This case involved a gang homicide so the prosecution called questionable witnesses (the kind you get in gang cases) who changed their testimony in some instances.  And of course the panel thought the jury was unaware of this after listening to the testimony of all the witnesses, observing their demeanor and considering the argument of defense counsel-the same argument he made to the 9th Circuit panel. The panel heard nothing from any witness, saw no witnesses, and knows nothing about the case except from reading a cold record. The jury decided the case having considered all  the evidence presented at trial and unanimously found the defendant guilty. Not in the 9th Circuit.  They liked the defense better-as in the Smith case reversed three times by the Supreme Court. 

Defense counsel tried to establish a third person had committed the crime, and produced enough evidence to convince the jury his client was not guilty. The jury made the decision in favor of the prosecution but the 9th Circuit panel explained why jurors made a mistake. 

Part of the evidence linking Aguilar with the murder consisted of testimony from an expert witness explaining results of a dog scent test. Subsequent to the homicide, police had removed clothes from an impounded white car matching a description by eye witnesses who testified the male driver had exited the vehicle, shot the victim and fled.  According to the expert witness, the test of the clothes found in the car was positive in identifying Aguilar as an occupant of the vehicle, but the prosecutor failed to disclose evidence that the dog had been previously mistaken in an unrelated case.  That information had been brought to the attention of the District Attorney but the test results had not been revealed to defense counsel in the Aguilar case.

Police found no fingerprints in the white car and the prosecutor could produce no forensic evidence resulting from a search of Aguilar’s dwelling. Although the prosecutor submitted the vast majority of the testimony of other witnesses, who admittedly conflicted, he argued to the jury the importance of the expert witness who testified to the results of the dog scent.

Obviously the failure of the prosecutor to provide defense counsel with evidence of a prior mistaken dog scent in a criminal case violated the Brady rule. Whether failure to disclose exculpatory evidence is sufficent to void an otherwise error free trial is arguable, but that is not the test.  On habeas corpus the Supreme Court has repeatedly lashed the 9th Circuit for ignoring AEDPA, and that is precisely the issue in Aguilar. This case is a gross misinterpretation of AEDPA. and its statutory demand of deference to state court decisions.

The jury listened to all the witnesses and were fully cognizent of the inconsistencies in testimony.  The jurors concluded the defendant was guilty and there is sufficient evidence to support that decision. The California Court of Appeal and California Supreme Court read the same record as the 9th Circuit judges, and the state court opinions are not “unreasonable” under AEDPA.  Disagreement by an appellate court opinion on habeas corpus under AEDPA is irrelevant.

The Aguilar case should be reheard or, if denied, reviewed on cert. to the Supreme Court.