McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)

The 9th Circuit allegedly selects its panels randomly, but challenges by critics to its methodology have gone unanswered;  McCormack v. Herzog was written by a judge whose decision could have been predicted the moment he got the assignment.  His decisions on civil rights, prisoner rights and defendant’s rights are routinely foregone conclusions.  An abortion case, like this one, was already decided regardless of the issue.  Of course he is not the only judge with a one track mind, but on abortion-unquestionable.

For some reason the plaintiff, who self induced an abortion, filed her complaint against  the prosecuting attorney rather than the state of Idaho. Very unusual.

Idaho had previously lost an earlier abortion case with the same plaintiff, and the prospect of the 9th Circuit panel changing its mind in this case a foregone conclusion; McCormack v. Heidman, 694 F.3d 1004 (2012).  That case was also written by the same predictable judge as well as the instant case of McCormack v. Herzog.

There is little point in summarizing the facts.  The case rests on a judicial interpretation of Idaho state law restricting abortion under certain statutory conditions, and the 9th Circuit panel adopted the usual “unreasonable burden on women” routine to vitiate the statute. The 9th Circuit had also previously found an Arizona statute imposing limitations on abortion unenforceable on the same grounds.  Strangely, another predictable judge wrote that opinion; Isaacson v. Horne, 716 F.3d 1213 (9th Cir).

The 9th Circuit will prevent enforcement of any abortion statute written by a state legislature.  Federal court review of legislation written by sovereign states is common-and wrong. Roe v. Wade, one of the worst decisions ever written, barren of precedent, inventing a 14th Amendment issue, usurping the right of every state in the country to enact its own laws.

42 U.S.C. 1983, the statute invoked in this case, is increasingly the formula used to allege violation of civil rights. The statute enables the 9th Circuit and other federal courts to rule on state cases alleging violations of the Fourth and Fifth Amendment; Due Process; Equal Protection; Eighth Amendment; & First Amendment.  Given the unlimited judicial interpretation of Constitutional law, particularly in the 9th Circuit, the boundless variety of decisions in these cases emerged.  The “liberty” interest of the 14th Amendment invented by the Supreme Court is intangible, subjective and abstract. and The decision on abortion should be determined by voters in a democracy instead of three tenured federal judges imposing personal policy decisions. As in this case.

Pensinger v. Chappell (Warden) 787 F.3d 1014 (9th Cir. 2015)

Jurors in state court must now accept jurors only if they are lawyers, judges, justices, academics,  law professors, rhetoricians, or linguistic experts in order to understand jury instructions.

The 9th Circuit has reversed the penalty in this death penalty case (as usual) in one of the most vicious, despicable, detestable cases ever tried in California.  The  defendant was convicted of not only murdering a small child, but also severing her reproductive organs from her body to prevent sexual identification. Although the defendant alleged another person responsible for the crime, the jury found him guilty of murder and kidnapping.

The death is so gruesome that any jury would impose the death penalty, and the jurors  convicted the defendant on the charge of felony murder based on the underlying crime of kidnapping. The 9th Circuit panel did uphold the verdict of guilty, but held California law “special circumstances” instructions on the penalty phase require proof that the kidnapping was committed for an independent felonious purpose ,i.e. not merely “incidental to the murder.” The panel cited the California Supreme Court case in Peo. v. Green, 27 Cal.3d (1980). The defendant in Green planned to throw gasoline on  the victim’s house, igniting a fire, and shoot the victim when he ran to escape the flames.  Instead, the victim was trapped inside the house and burned to death.  The wife was seriously burned but survived to suffer years `of surgery.

The Green court held the prosecution had shown no independent motive of murder by arson other than committing the arson, and the “special circumstances” jury instruction in the penalty phase (invented in the case) should have been given. This is the kind of academic unreality apparently held by one of the newly appointed California Supreme Court justices who has never tried a case in his life .  The jury does not rely exclusively on jury instructions.  They consider  the depravity of the case, the defendant’s testimony-or lack thereof- the nature of the crime and the extent and kind of evidence submitted.  The 9th Circuit panel confirmed the jury  decisions on guilt and that alone should be enough without academic quibbling.

According to the panel, this inexplicable distinction written by the California  Supreme Court occurred in compliance with Supreme Court jurisprudence. In other words, the jury can find the defendant guilty regardless of whether the underlying felony was “incidental” or not.  But to support the death penalty, the crime had to be independent of the murder. Subsequent litigation by the state supreme court has modified that rule but the 9th Circuit prefers the Green rule.

Because the defendant was convicted in1982, AEDPA had not been enacted so the 9th Circuit  could review this case de novo.  You  would think that no matter what the evidentiary standard, the appropriate penalty in this case was death-not a reversal from a lawyerly parsed instruction no juror could understand.  And even if the “correct” jury instruction was not given, the error is so harmless that any juror would ignore the legal lingo or comprehend it. How can the prosecutor retry the penalty after 30 years, the delay attributable to the defendant petitioner on federal habeas corpus and an affirmed decision previously issued by the California Supreme Court?

Another case ready for cert.



Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015)

Federal courts, including the Supreme Court, but specifically the Arizona federal district court and the 9th Circuit, have done everything possible to preclude enforcement of immigration laws in Arizona. In addition, federal courts have taken over the state legislative and executive offices to manage immigration in the state.  The State legislature has been overruled and sweeping federal court injunctions control the executive.

The latest case, Melendres v. Arpaio illustrates the inability of Arizona to enforce border control judicially, and the federal Department  of Justice also insists on preemptive authority to enforce immigration law, a decision easily waived or delegated, to foreclose the state of Arizona enforcing the law.  Injunctions in civil cases ordinarily order one party to discontinue certain acts or conditions of another party, and the detriment to that party is substantial. But in the context of immigration, public agencies must submit to the policy decisions of a single judge. Here is an example of an injunction issued by a district court judge recited in the 9th Circuit opinion:

“[As a result of the evidence”], the district court permanently enjoined Defendants from “(1) detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization; (2) using race or Latino ancestry as a factor in deciding whether to stop any vehicle with a Latino occupant, or in deciding whether a vehicle occupant was in the United States without authorization; (3) detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law; (4) detaining, holding or arresting Latino occupants of a vehicle … for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present; and (5) detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.”

In addition the judge ordered the Sheriff’s Office to begin officer training in the Fourth Amendment, training in racial profiling (how do you do that?), and appointment of a Monitor with extensive authority to evaluate all programs.  At state expense.

That a federal court could run a sheriff’s office is an incredible display of judicially unauthorized conduct.  But this is not the first arrogant act.  The federal district court, with the agreement of the 9th Circuit, managed the Nogales School District for 30 years to make sure English was taught to Spanish speaking children illegally in this country.  Even the Supreme Court could not approve that-and did not.

The 9th Circuit is also running California prisons, ordering prisoners released for no reason other than because the prisons are crowded. And recently the 9th Circuit ordered a class action of 33,000 inmates who alleged deficient medical services in Nevada prisons despite the fact not all the prisoners needed medical service. Parsons v. Ryan, above This is not the first case the 9th Circuit has invoked solicitude for rapists, burglars, murderers, robbers and thieves.

N.B. Judge Lawrence Waddington has published his book on the 9th Circuit entitled “Disorder in the Court.”



Comstock v. Humphries, 786 F.3d 701 (9th Cir. 2015)

Ninth Circuit judges have employed every verbal manipulation in the book on habeas corpus cases but this one is unbeatable.  First, the panel announces it is bound by AEDPA and deference to state courts on habeas corpus. Second,  recites all the appellate limitations imposed on the 9th Circuit by the Supreme Court. Third, the district court had denied the petition so review  on appeal of that decision was de novo.  The Nevada Supreme Court had  previously affirmed the conviction, but the Nevada Supreme Court had not made a finding of facts and conclusions of law on the underlying issue of the case.That failure voided all previous judicial decisions, and the panel could review de novo.

The underlying facts are not crucial to the issue itself, i.e., habeas corpus decisions by the 9th Circuit.  Comstock is a routine Brady case, i.e., an alleged failure of the prosecutor to disclose evidence favorable to the defense.  The trial judge denied a motion for a new trial on the Brady issue; The Nevada Supreme Court denied appellant’s state court appeal on the same issue; the district court affirmed the state court; on habeas, the 9th Circuit panel reviewed the record as though on appeal and reversed on the ground the Nevada Supreme Court had not made a finding of facts and conclusions of law.

This case is nothing more than an appeal from the district court in trial- not habeas corpus. AEDPA requires deference, not a finding of facts and conclusions of law-which happens to be the job of the trial judge in the appropriate case.  The Brady issue in the case is arguable, but a trial is not just a law review.  The jury may not believe the defendant or his witnesses no matter what the Brady issue.  The trial judge sees that, not the appellate court on a cold record.