Another case written by a 9th Circuit panel reversing jury imposition of the death penalty phase of a state court trial. Unsurprisingly, the judge who wrote the 39 page opinion – including footnotes – has never affirmed a capital case and was allegedly “randomly” selected.. The judge, “randomly” selected in a disproportionate number of cases on death penalties, has been reversed by the Supreme Court more than any judge in the country. Nor has the second judge on the panel ever affirmed a death penalty case. If the case is not reheard en banc, the Supreme Court will hear it. And reverse.
The court starts with the observation that the procedural history of the case began in 2005, ten years ago, with the Supreme Court in reversing the 9th Circuit and ordering remand. Without exploring the habeas corpus arguments, apparently Doe still has another pending case in addition to the current case.
In a curious and probably unlawful act, the panel deleted captions naming the district court judge and the defendant -petitioner- himself. This hypocrisy will also be challenged. There is no authority for this, or at least the court cites none.
The facts of the brutal murder are horrific, and the judge writes that all murders are in that category. But, he writes, in capital cases the crime must be “egregious.” to warrant the death penalty. There is no citation for this disgusting and insensitive characterization of raping and murdering a handcuffed woman in this case.
The merits of this case and the penalty were confirmed by the California Supreme Court and the federal court district judge, but the petitioner filed his petition before Congressional enactment of AEDPA enabling the 9th Circuit panel to evade the rules of current jurisprudence-in which the court has repeatedly been reversed by the Supreme Court . As noted in the next post, the 9th Circuit is finished with granting habeas corpus in state cases filed after 1996-the year Congress enacted AEDPA.
The court panel concludes that the attorney who tried this case did so “ineffectively” but insufficiently to warrant reversal on the merits. On the penalty phase the court writes endlessly on the lack of experience and the mistakes of appointed counsel. Curiously, in a subsequent hearing this lawyer agreed he made mistakes. Why did the trial court, monitoring the case, not sense these mistakes and inquire of counsel of the course he was taking? In any event, this disclosure by the attorney almost suggests he made these mistakes on purpose to preserve an appeal of a guilty client.
Without reviewing the horrible, but not “egregious,” facts, any jury would have imposed. the death penalty regardless of any mistakes by counsel. The evidence of guilt is overwhelming and the mitigating evidence is the usual defenses.
Note: To read a more sensible and less theoretical death penalty case, see Elmore v. Sinclair, 2015 WL 1447149.