U.S. v. Lee, 821 F.3d 1124 (9th Cir. 2016)


A dissenting judge in the U.S. 9th Circuit Court of Appeals has finally written a scathing  accurate dissent in a case and commented on repeated jurisprudential clashes between the court and the U.S. Supreme Court. U.S. v. Lee. Other 9th Circuit judges have previously dissented in opinions within the boundaries of submitted cases, but not always challenging decisions of the circuit in the language of Judge Ikuta in Lee.

For the last decade the 9th Circuit, invoking habeas corpus on Constitutional issues, has repeatedly reversed state supreme courts within its federal jurisdiction, but the Supreme Court has reversed that court more than any other federal appellate court. During the described era the Justices stripped 9th Circuit jurisdiction in state Fourth Amendment issues and in state parole hearings: “state parole is none of your business.”

In Cavasos v. Smith, 132 S.Ct. 2 (2011) a 9th Circuit habeas panel reversed a state court jury conviction two times on grounds the defense presented a better case at trial. Reversed each time by the Supreme Court, instead of the panel writing another opinion, an unknown person contacted the Governor’s office. In two weeks Governor Brown granted the defendant clemency.

In 1996 a frustrated Congress enacted legislation restricting federal habeas corpus intervention by all federal courts on state court judgments. In the Anti Terrorism & Effective Death Penalty Act, a federal court could only overrule state court decisions unsupported by “clearly established” Supreme Court law-not local precedent. Prior to the statute, the 9th Circuit on habeas corpus had reviewed state decisions de novo under rules on direct appeal.

Confronted by the statute, Ninth Circuit judges no longer allegedly relied on their own interpretation of the Constitution but introduced the Sixth Amendment right to counsel. The Supreme Court had already fulfilled the right of an accused to jury and counsel. The 9th Circuit invented a supplemental issue requiring “effective” counsel. These cases formed the majority of 9th Circuit reversals, each time panels criticizing defense counsel for ineffectively conducting an investigation or trial. Almost every case involved the death penalty, and confirmed the objective of a majority of 9th Circuit judges seeking to terminate capital punishment.

The 9th Circuit undertook another interpretation of “clearly established” Supreme Court decisions. In Batson v. Kentucky, 476 U.S. 79 (1986) the Supreme Court had held prosecutors could no longer peremptorily challenge potential jurors on grounds of race. The 9th Circuit immediately applied the case to overrule a state court by asserting the prosecutor had challenged a potential black juror. The prosecution sought certiorari of the decision, and the Supreme Court reversed with the comment : “The Ninth Circuit court substituted its own opinion.”

Frequent reversal of 9th Circuit habeas corpus opinions of state cases compelled the Supreme Court to eventually require federal courts to “defer” to state courts. Despite the rule, the record of Supreme Court reversals continued and led several 9th Circuit judges to refer to their embarrassment year after year. Judge Ikuta wrote: “Judicial disregard for Supreme Court habeas jurisprudence is inherent in the opinions of the Court of Appeal for the Ninth Circuit here under review.” This language summarizes judicial disregard of the law. In one case a 9th Circuit judge criticized numerous state court “mistakes, ” ignoring the record of the 9th Circuit.

Concerned with the Supreme Court rule mandating “deference” to state courts, 9th Circuit judges discovered another method of reversing cases in habeas corpus. Statutory reference under AEDPA permits reversal only if the state court decision constituted an “unreasonable interpretation” of federal law or of the factual record. The word “unreasonable” is an abstract word, contingent on the facts and subjectively decided. This statutory interpretation requires federal habeas corpus review to merely conclude the state court decision “unreasonable”. As the Supreme Court said, “merely a substitution of opinion.”

The 9th Circuit found yet another alternative to reverse state court convictions under habeas corpus and apply the rules of direct review. After the state supreme court affirmed a conviction, the defendant filed habeas in federal court. The 9th Circuit allowed the district court to conduct hearings on evidence never submitted in state court nor alleged on appeal. The Supreme Court has discontinued this unfair process.

A federal district court judge, ignoring the Supreme Court and its repeated reversal record of the 9th Circuit, and oblivious to federal or state law, asked a habeas petitioner to rewrite his petition to argue the California death penalty unconstitutional. The U.S. Supreme Court and the California Supreme Court have both repeatedly rejected this argument for several years, the former as recently as two weeks ago denying certiorari. Even the 9th Circuit reversed the district court. Boyer v. Chapell, 793 F.3d 1092 (9th Cir. 2015).

Another federal district court judge, who probably never tried a criminal gang case, decided to overrule the California Supreme Court affirmance of a conviction in a case tried in 1985,and a denial of certiorari by the U.S. Supreme Court. Williams v. Davis, 2016 WL 1254149. Gang cases are obviously the most difficult for the prosecution. Witnesses fearful of retribution, immunized accomplices, witnesses who recant or testify inconsistently, and questionable identification. This judge granted habeas in a case 35 years old and impossible for the prosecution to retry when witnesses willing and able to testify have either died or unavailable.

In Williams, a single federal judge retrys a case, ignores a unanimous jury verdict, alleges the prosecutor withheld witness notes from the defense, and chastises the California Supreme Court opinion. The law thirty five years ago did not require pre trial prosecution discovery. And, according to the district court, the California criminal justice system is “dysfunctional.” Unfortunately, the judge forgot to mention this thirty five year old case does not include 9th Circuit reversals as relevant.

Reading Supreme Court cases reflects policy decisions of a majority, not the law. Many of these judges oppose the death penalty and have used excuses consisting of prosecution misconduct, ineffective assistance of counsel, voir dire challenges, and “lawyerly parsed” [Supreme Court] jury instructions, or penalty errors. The Supreme Court has tightened the habeas rules in criminal cases and Congress has attempted to limit federal jurisdiction. The Supreme Court should strip federal habeas corpus review comparable to their decisions on the Fourth Amendment and parole.

Granting habeas petitions not only affects the lives of victims, families and friends. Retrying a case several years after conviction often proves impossible. Incredibly, the attorney general who represents the state has made no comments on the 9th Circuit, more concerned with child truancy, and ignoring her commitment to serve four years while rying to get another job.

The governor, attorney general and the state legislature have done nothing to limit federal interference in California courts and the repeated hearings, release of inmates, delay and cost. The governor wants to spend billions on a train, the attorney general travels around the state soliciting votes, and the legislature more concerned about issuing drivers licenses increasing traffic the City of Los Angeles tries to control. Although not entirely alone, at least one voice is crying in the wilderness.