Mayes v. Premo, 766 F.3d 949 (9th Cir. 2014)

When  the Supreme Court decided Batson v. Kentucky the Justices never eliminated the AEDPA provisions requiring federal deference to state courts on habeas corpus.  Each time the Supreme Court reverses the 9th Circuit the Justices verbally lash refusal of several federal judges who fail to adhere to AEDPA.  And in each of these reviews the Court imposes stricter provisions than before.  In Mayes v. Premo the majority of the 9th Circuit panel correctly cites its role as federal habeas corpus judges: uphold the state trial court finding that the prosecutor did not excuse black jurors on racial grounds unless the record is clearly wrong.

But one judge In Mayes dissents, ignores AEDPA, and reviews the finding of the trial court de novo. In other words, he just makes up his own mind and substitutes his own judgment.  The trial judge specifically upheld the defense objection to the prosecution peremptory challenge of a potential black juror; the Oregon Court of Appeal upheld the trial judge; the Oregon Supreme Court denied review; the U.S. district court judge denied the habeas corpus petiton.  In other words, this judge ignores 12 judges with his aberrant dissent and disregard of the law.

The Batson case has made every case involving a black or Hispanic defendant a ground for appeal if the prosecutor excuses a minority juror. The dissenting judge in Mayes, who has never tried a criminal case, apparently thinks he can impose his judgment from reading a cold record. A trial lawyer excuses jurors for a variety of reasons, regardless of race.  The juror’s demeanor, their voice; the way they answer questions; the inconsistency of their answers to questions in court or their pre trial questionnaire; or just plain dislike of a potential juror.  None of this shows up on a cold appellate record.  Add to that the Supreme Court comment that the trial judge is the best observer of voir dire.  The  dissent shows complete disregard for these factors.

The amount of time taken to voir dire the jury is now incredible, and even though the evidence consists of overwhelming evidence of guilt, if one juror is arguably excused wrongfully, this judge will reverse. His decision in this case is not the first time he and others judges search the trial record in a quest for error.

Glebe v. Frost, 133 S.Ct. 429 (2014) Reversing 9th Cir.

Another reversal of the 9th Circuit, and we are only two weeks into the current term of the Supreme Court. The Justices have already reversed five cases.  The Glebe decision is per curiam by (all members of the Supreme Court).

The defendant Frost began a series of robberies eleven your ago along with other men. At the trial he admitted participation in the robberies. Tried and convicted of the robberies and other related crimes, he appealed to the Washington Supreme Court who affirmed the conviction.  Frost filed a habeas petition in federal court and was denied.  On appeal to the 9th Circuit; the panel affirmed the order but on en banc hearing: reversed.

Frost claimed the trial judge would not let him argue failure of the trial court to allow him to argue the state did not establish corroboration of the accomplices who testified against him, and that he committed the robberies under duress.  How you can argue the absence of corroborating witnesses to committing the crime and contend you were under duress is a good question.

According to the 9th Circuit, the trial court erred in failing to allow counsel to argue inconsistent defenses. On cert., the Supreme Court did not address this question because the 9th Circuit en banc panel used their own precedent to determine whether AEDPA had been applied without any “clearly established” Supreme Court law as fully discussed in the recently decided Lopez case. The Supreme Court informed the 9th Circuit (again) it cannot rarely on its own precedents.

But the main issue revolved around the trial court decision whether refusing to allow inconsistent defenses constituted “structural error.”  Most Constitutional errors warrant reversal only if the the error is harmless.  Structural error “must infect the entire trial process and render it unfair.” In reviewing the trial record the Supreme Court concluded no infection of the entire trial process rendered it unfair, particularly when testified to his commission of the crimes (but under duress).


Wood v. Moss, 134 S.Ct. 2056 (2014); reversing 9th Circuit)

Although the Supreme Court decided this case in May, 2014, the recent November 2014 elections remind us the Presidential election remains only 2 years away, and  events similar to those in Wood v. Moss, which occurred at the time of President Bush’s election, may recur.

President Bush was campaigning for re election in Oregon and scheduled to spend the night in a small town.  As he walked through the streets accompanied by Secret Service Agents, two groups followed him.  One group was challenging the President for re election, and another group supporting him. Secret Service Agents were cooperating with local police for crowd control and trying to keep the distance between the two groups and the President roughly the same.  At the last minute, the President changed his plans and entered a restaurant.  The Secret Service Agents re positioned the two groups in their distance from the President.

The plaintiffs alleged a First Amendment violation of “viewpoint discrimination,” contending the Agents discriminated against them because their location was disabling them from seeing the President, as distinct from the supporting groups. Incredibly, the 9th Circuit agreed, not only on the viewpoint discrimination issue but also denied the agents qualified immunity allegedly having violated  “clearly established” federal law.

A unanimous Supreme Court reversed, holding that the Agents could not necessarily equalize the distance between plaintiff’s group and the supporting group, particularly when the President changed his route without notifying them As to the qualified immunity argument,  the Justices knew of no law “clearly established” under the circumstances and unanimously reversed this absurd 9th Circuit opinion.