This case confirms every previous Supreme Court reprimand of the 9th Circuit in collaterally reviewing state court convictions. “Habeas corpus is a guard against extreme malfunctions in state criminal justice systems, not a substitute for ordinary error correction through appeal;” Harrington v. Richter, 131 S.Ct.770 (2011). Collateral review (after the state court has affirmed a conviction) is subject to deference by federal courts and applies only if the decision is an unreasonable application of federal law and not a de novo appeal; AEDPA. “The habeas standard is difficult to meet because it was meant to be;” Harrington. The majority of the 2-1 9th Circuit panel completely ignores AEDPA in Amado v. Gonzales and retrys the trial entirely on its own initiative as though on appeal.
In a gang prosecution the testimony of witnesses other than law enforcement officers is not likely to come from anyone except other gang members. Obviously these witnesses are unreliable, often fear retaliation, and credibility always an issue. In the Amado case, a black gang planned to forcibly enter a school bus carrying members of another gang. When the bus arrived and stopped, the gang members stormed aboard and began beating and shooting riders. According to the witnesses who did testify, Amado was among the attackers who ran toward the bus when it stopped. Some doubt arose whether he was carrying a gun, but he was not convicted of possessing a firearm; he was convicted of aiding abetting.
One of the witnesses for the prosecution was severely impeached and at trial recanted his statements he had given to police prior to trial implicating Amado and his possession of a firearm. In fact, the witness was only briefly cross examined, presumably for recanting although he was also on probation for commission of a robbery. But Amado was tried as an aider and abetter, not a principal, and carrying a gun is irrelevant for that charge. The majority panel wades into the trial record, speculates on what the jury might think if the prosecution had disclosed the recanting witness was on probation for commission of a robbery.
The prosecution conceded it failed to disclose the prior criminal record of this witness although that information was reflected in the witness’s probation report. According to the panel majority, this non disclosure violated the Brady rule, and if disclosed the jury might have questioned the credibility of the recanting witness. On the defense motion for new trial the trial judge agreed the disclosure should have been made but doubted the consequence of influencing the jury who had already heard a witness recant his testimony yet they voted for a guilty verdict. According to defense counsel, he did not discover the prior robbery conviction prior to trial and also that the witness was a member of a gang.
Many of the judges on the 9th Circuit have never tried a criminal case or presided over one. Their naiveté is deplorable. When a witness recants his pre trial statements to police implicating the defendant what does the jury think of his credibility? In spite of that, the jury convicted Amado. Other witnesses also implicated Amado, and the record does not disclose whether Amado testified. The jury could understand all the witnesses were either gang members or familiar with gang members and knew credibility was in issue. The trial judge, who heard all the witnesses, refused a motion for new trial even assuming the prosecution should have disclosed the robbery conviction and probation report.
Where was defense counsel prior to trial? This is a gang case and the first task a defense counsel does is demand the criminal records of all the witnesses because the probability of them having committed crimes themselves is obvious. Defense counsel neither made no such request of the prosecution nor searched the records. And apparently he did not ask his client if any of the witnesses had criminal records.
The majority panel concludes the failure to disclose the information requires a new trial. How do you think the prosecution will be able to do that? This case, more than any other, ought to result in a Supreme Court decision to refuse federal appellate courts from hearing habeas corpus of state courts at all. State courts can be limited only to cert. by the defendant alleging a “malfunction of the state court system.” The Supreme Court has previously denied the 9th Circuit reviewing state court search and seizure cases and parole hearings.