Nothing stops the 9thCircuit from reversing death penalty cases. The Rogers case is so unjust the Supreme Court should eliminate habeas corpus cases from the 9th Circuit docket.
On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their home in an isolated part of Pershing County near Majuba Mountain (Nevada), where they resided with Frank’s parents, Emery and Mary Strode, and Frank’s sister, Meriam Strode Treadwell. When they entered their parents’ trailer, they found the dead bodies of Emery, Mary and Meriam under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a knife which was left in his chest. A pocket watch discovered in Emery’s shirt pocket had been struck by one of the bullets; the hour hand of the watch was stopped at one o’clock. Mary had been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.
The jury convicted Rogers and voted the death penalty. The arrest and trial of Rogers are not in issue, and the Nevada Supreme Court affirmed the verdict on appeal. The federal district court granted habeas corpus and the prosecution appealed to the 9th Circuit. Affirmed.
In Nevada death penalty cases the jury is instructed at the guilt phase and separately at the penalty phase. In the trial, the prosecution sought to prove several aggravators that would make Rogers eligible for the death penalty. Ultimately, the jury found two aggravators: “[t]he murders involved torture, depravity of mind,or mutilation of the victim;” that these murders were committed by a person who was previously convicted of a felony involving the use or threat of violence to the person of another.” The jury found no mitigating factors sufficient to outweigh the two aggravators of this crime. The jury imposed the death penalty.
As noted, the trial court instructed the jury that first degree murder requires “depravity of mind and can be found only through evidence of torture, mutilation or other serious and depraved physical abuse beyond the act of killing itself”. Said the 9th Circuit panel, “Here, in contrast, Rogers inflicted at most five wounds on Emery Strode, during a ‘confrontation,’ and considerably fewer upon Mary Strode and Meriam Treadwell. These acts, though “reprehensible”, were coterminous with ‘the act of killing itself, and a juror likely would have concluded that these acts did not constitute torture or depraved physical abuse.”
Not torture? Not physical abuse? Killing three people, one dead with a knife in her back, the other bound by electrical cords, and one victim shot in the back. This evidence, coupled with a prior conviction of a violent felony does not evidence “depravity?” The panel said the absence of depravity might have avoided the death penalty. “Rogers inflicted only five wounds [on one of the victims] and considerably fewer on [other victims]. ”
What kind of justice is this? Does anyone think Rogers is not subject to execution? This panel bragged that in a previous 9th Circuit case the victim had been stabbed 45 times and that is not depravity. According to the panel, the depravity must exist apart from the act of killing itself. What kind of judges are these?
Of course this is a 1980 case and the prosecution must try to find witnesses in 2015. And, AEDPA is cited and ignored because in this case the panel said the state court decision is “unreasonable.”
Grant an en banc rehearing. If denied, take it to the Supreme Court. This decision is incomprehensible, disrespectful, and disgusting. The panel conceded the crimes were “reprehensible.” How touching. Or, as the district court held despite granting habeas corpus on other grounds, “remote.”
In a footnote the panel says it will not respond to other alleged court errors in the petition, so Rogers can raise them in remand to the district court. And, of course, appeal a denial of any issues in this 1980 case.