Monthly Archives: September 2016

Crittenden v. Chappel, 804 F.3d 998 (2015) summary on Batson v Kentucky

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Crittenden was convicted of murder in 1995, and the case affirmed on mandatory appeal to the California Supreme Court. The 9th Circuit on habeas corpus appeal wrote rehearings and remanding to the District Court. Finally in 2011 the district court made another decision on remand.The case has been sitting in the 9th Circuit for another five years. Finally, in 2015 the 9th Circuit concluded the prosecutor had violated Batson. In 2016 what are the chances of retrying a murderer?

The ground for appeal by the defendant: the prosecutor’s peremptory challenge of a single black  juror who was equivocal in her answers to prosecution questions on the death penalty, including her statements “she didn’t like putting  people to death.”  Of course the 9th Circuit panel included her equivocal answers to other questions and into the appeal jungle went the case.

In the earlier Crittenden v. Ayers, 624 F.3d 9th 943 (2010) opinion the 9th Circuit panel decision the author included an endless number pages reciting voir dire. Allowing a court hearing of an excused juror on the grounds written above is a pretrial waste of time and money.  Crittenden is another example.  Allowing a ruling on an issue of no relevance to the merits of the case is absurd under the Batson v. Kentucky rule. That plus the endless arguments delaying the trial and the cost of any retrial.

 

Frost v. Gilbert, 818 F.3d 469 (9th Cir. (2016)

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Arrested, tried, and convicted for a  a major robbery spree committed by Frost in 2003, (thirteen years ago) he was tried in state court, and the overwhelming evidence convinced the jury of his guilt. On appeal in state court, the justices denied his argument of “structural” error at the trial. Frost argued the trial court had refused to allow his counsel to argue the prosecution had not established its burden of proof, and, in addition he committed the robbery under duress. This inconsistent argument to the jury was denied by the trial judge whose decision was upheld in state court, and in federal district court, invoking habeas corpus. On appeal to the 9th Circuit, Frost argued the same “structural error.”  Denied by the three judge panel.  Reversed on en banc. Cert by the state granted..

The Supreme Court reversed the 9th Circuit in a short per curiam opinion and specifically criticized the 9th Circuit. On remand,the 9th Circuit panel arrogantly considered different legal argument: had the defendant been “prejudiced” by the trial court?  Fortunately, despite its insolence, the 9th Circuit  affirmed the conviction .

Some judges of the 9th Circuit are determined to ignore the Supreme Court and common sense.  The evidence in the Frost Case was overwhelming.  Frost even testified he was “under duress.”  The jury obviously disagreed.  Why reverse a jury verdict with a technical issue the jurors would have ignored?  When will the Supreme Court divest the 9th Circuit in habeas corpus cases?

Immigration: Bhatattari v. Lynch, 835 F3d1037(9th Cir. 2016)

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Although the Blog no longer tracks immigration cases due to the volume and fact based evidence, occasionally one appeal exemplifies the 9th Circuit. Some judges on the 9th Circuit are so  predictable that their name on the panel  hearing a case on appeal predicts the result. William Fletcher fits that role.  He has never affirmed a death penalty case, always sides with the petitioner in habeas corpus, and allows immigrants with a criminal record to remain in the United States.

Bhatattari is an example.  The IJ and BIA both agreed the Bhaattari request for asylum was littered with inconsistencies in the evidence,  but Fletcher played the defense role. Writing endless pages arguing with the adverse IJ decision, he concluded the lack of “credibility” by the applicant decided by the IJ had not been established based on the documents offered by the applicant.  According to Fletcher, the IJ did not notify applicant  of his right to rebut the reasons for the her decision despite representation by a lawyer who represented the applicant  In other words, the IJ should assist applicant in defending himself.

Aide from the absurdity of this decision, and the unfortunate result of another hearing, Fletcher-who has never tried a case- does not understand that “credibility” is not confined to a cold transcript.  The IJ considers the nature and demeanor of the applicant and whether  or not to believe him.  None of this shows up on the IJ record (or habeas records) that Fletcher and other trial novices on the 9th Circuit  understand. Now the taxpayers will fund another IJ hearing and perhaps another appeal.