When the Constitution was written, the authors from the thirteen states would never have approved federal court review of their own state court decisions. Only after a century of constitutional enactment did the U.S. Supreme Court discover habeas corpus enabling federal review of state criminal cases. The 9th Circuit continues to rule repeatedly on state court cases ignoring or mis applying Supreme Court decisions (for a list of decisions reversing the 9th Circuit, see Deck v. Jenkins,. Hardy is no exception.
Hardy v. Chappell, a conviction affirmed by the California Supreme Court, state habeas courts and the federal district court judge was reversed by a 2-1 panel in another unbelievable and erroneous decision. The panel cited three of their own cases reversed by the Supreme Court.
The decision in Hardy was nothing more then an AEDPA case, but the author (who probably wrote the opinion) is a judge who has never tried a criminal case, never affirmed a death penalty case, ignores Supreme Court opinion and repeatedly overrules the state supreme courts. The decision engages in an academic linguistic and incomprehensible opinion ruminating on what jurors “could have done”, or “might have done.” The 9th Circuit judge (senior) completely misunderstands jurors who watch witnesses and evaluate them. Ninth Circuit Circuit judges read a cold transcript with no understanding of witness demeanor and attitude.
In order to avoid AEDPA ;the majority come up with a few thoughts without any basis. This case, as noted by the minority judge, is another 9th Circuit game playing, and the U.S. Supreme Court should strip that court from hearing habeas corpus of state court cases. Thanks to the majority holding in Hardy, the prosecution is unlikely to ever to re try this case.
A well written case on the Fourth Amendment. Although the Fourth Amendment is in the Bill of Rights, the Supreme Court has held it is not a constitutional right nor a personal right. The purpose of the exclusionary rule is to protect the right by excluding evidence in criminal cases lacking probable cause to arrest or search and only to avoid extreme police misconduct. Evidence of exclusion in a criminal case is not excluded in civil cases; U.S.C. 1983.
Note: the Supreme Court has finally realized the cost of the exclusionary rule. The only person who is protected is the criminal who possesses contraband, stolen property, weapons or drugs. When the judge rules the officers violated the Fourth Amendment. the only person whose rights are violated is the criminal. Exclusion of evidence causes the loss of the prosecution case.
At least some judges on the 9th Circuit are applying the Supreme Court mandate to apply deference to state court decisions on federal habeas. To a 2-1 panel majority the petitioner had argued the prosecutor allegedly implied from her closing statements that the defendant did not take the stand and submitted no rebuttal evidence to the prosecution case. The Supreme Court has disallowed any comment at trial on the failure of a defendant to testify under the aegis of the Fifth Amendment. Petitioner argued the prosecutor was employing that rule. The California Court of Appeal denied the appeal in state court. Petitioner sought federal habeas and the court denied the petition.
The majority denied habeas corpus. Maybe some 9th Circuit judges are getting the question, but some never will, to defer to state court opinions denying appeal or habeas corpus -as they should.
Ten years ago a jury convicted Curiel of murder and sentenced him to life imprisonment. All state court hearings affirmed the conviction as did the three judge 9th Circuit panel. Reheard, the panel reversed on grounds the California court rules misapplied tolling. One judge, Stephen Reinhardt concurred in a lecture informing California courts how to operate. Reinhardt should know, after all, he and the 9th Circuit have been reversed by the Supreme Court more than any other court in the country .
He does make one good point. The California Supreme Court should amend its habeas rule in capital cases and impose a specific time for filing habeas corpus instead of the current rule holding the petition should be filed in a “reasonable time.”
Add this case to another 9th Circuit reversal of a murder conviction (after only ten years).