The district court in McNight had issued qualified immunity to the officers in an excessive force case and was reversed by the Ninth Circuit.The Supreme Court granted a petition for certiorari, vacated the decision of the Ninth Circuit, and remanded for “further consideration in light of White v. Pauly, 137 S.Ct. 548 (2017).”  In White, the case recommended, the Justices criticized other excessive force reversals by appellate courts on grounds of high generalization of qualified immunity.

In McNight the Ninth Circuit has not issued an opinion on the remand since the Supreme Court decided the case in June, 2017.

In 1996 Congress enacted the AntiTerror and Effective Death Penalty Act (AEDPA) to reduce the impact of a U.S. Supreme Court decision adding federal habeas corpus in the U.S. Constitution to jurisdiction in state courts. Federal courts began to review state court criminal cases in habeas corpus petitions to reverse judgments already decided. The imposition exceeded its expectation as federal courts rendered decisions far exceeding legislative intentions.

In time, the language of the Act came very close to almost ending federal habeas review of state courts. Federal appellate courts, particularly the Ninth Circuit, evaded the statutory language and was repeatedly reversed by the U.S. Supreme Court. In the words of a Supreme Court Justice, AEDPA was intended “only to guard against extreme malfunction in the state justice system not a substitute for ordinary error correction through appeal.”

This test rarely fits the decisions of the Ninth Circuit as demonstrated in a November 2017 case of Browning v. Baker. No case illustrates better a complete disregard of AEDPA and its purpose as expressed in the dissent. The 2/1 majority opinion in Browning is just that in the words of the Justice: correction through appeal. The majority repeats the entire state court trial record of a robbery admittedly involving conflicting testimony. The jury, who sat through the trial and evaluated testimony and its credibility, unanimously voted for “guilty.” The majority of judges in the Ninth Circuit saw no witness, and the trial judge made no legal mistakes-including affirmation of the jury verdict. But the majority in the Ninth Circuit didn’t like some of the witnesses and re tried the case. Certiorari  is assured.

Another murder case resolved by the Ninth Circuit whose judges regularly reverse murder cases and death penalties although the jury in Godoy v. Spearman voted only second degree murder. The California Court of Appeal had affirmed the conviction, the California Supreme Court denied review, and the district court denied a habeas corpus petition filed by the defendant. The Ninth Circuit heard the appeal from the district court  and in a split vote reheard the case again on federal habeas corpus and reversed.

The Ninth Circuit author of the Godoy decision wrote that the case was originally governed by AEDPA, but the California Court of Appeal refused to apply U.S. Supreme Court precedent.  For that reason the court said,  we can  use the correct standard of de novo instead. This judicial invention, unsupported by precedent, allowed the Ninth Circuit to repeat its earlier discussion of AEDPA for some irrelevant reason and rewrote the decision in the “correct” version.

In the course of that alternative legal version of the law, the majority court panel repeatedly criticized the California Court of Appeal for all its errors, reverses a state supreme court case and a federal district court for the unknown future of a second trial.  Or, if witnesses cannot be found, records lost, investigating officers retired, the defendant convicted of murder goes free.

The essence of this case is nothing more than a statement by a juror to the trial judge  that she had heard another juror converse on the phone  with a “judge friend” during the trial.  No evidence was presented on the subjects discussed, but according to the Ninth Circuit the trial judge should have held a hearing. If the juror was unaware of the topics discussed what would the hearing have proved? The issues in the case are not so much what response the state court trial judge should have made or done, but the repeated criticism of the California Court of Appeal.  Secondly, the Ninth Circuit rejection of AEDPA.  Their decision also reversed the district court judge who affirmed the state court decision.

Godoy v. Spearman is another example of two court systems for the same case. A waste of time and money, endless appeals, and a refusal of Congress to eliminate federal habeas corpus. Whenever the state  court concludes their case is ended, the only post trial issue is state habeas corpus-and possibly the U.S. Supreme Court. Who have said almost the same thing.

In a split 9th Circuit court vote the majority Constitutionalizes a courtroom practice defined as “shackling” prisoners, and destined to affect all state and federal trial courts. The dissent is a written masterpiece rejecting the majority court decision of four men convicted several years ago. The court is ruling on: the absence of a “Case or Controversy” mandated by the Constitution; violation without precedent of the Fifth Amendment Clause; a series of adjectives describing the impaired dignity of everyone shackled; ignoring a presumption of innocence until a verdict;  the work of justice applies to everyone until convicted. In addition to a justifying a jurisdictional right to begin with an a case already concluded, the court invents mandamus as an alternative to appeal.

But these procedural controversies are not the heart of the case.  The majority outlines a legal history beginning with the common law and thendisagreement between the other Circuits. The issue: can ederal Marshals shackle all prisoners in non jury appearances before a judge or magistrate judge? For a variety of reasons, including inability to forecast violence by the prisoner, the configurement or location of the court, the lack of adequate staff to restrain escape or injury, and other factors. The court majority ignores all criticism of shackling and defines prisoners in criminal court as  presumed innocent men until found guilty, entitled to dignity in a courtroom, and judicial decorum. The dissent characterizes this language as ivory tower rationale.

Federal court Marshalls in non jury trials attempt to shackle every defendant but do lack staff in some cases. No federal statute exists to enforce shackling of all defendants in criminal trials, and inventing the procedural Constitutional decisions are absurd. Time for certiorari if the California Attorney General knows anything about Constitutional law.

Another death penalty case reversed by the same judge who reverses other capital cases (including this one earlier ), never upholding the verdict regardless of the vicious and brutal murder the jury voted correctly. In this case, scouring the record of a defendant who filed three state habeas corpus cases rejected by state courts; a previous federal habeas corpus case reversed by the 9th Circuit; the instant case reversed by the 9th Circuit.

To begin, the judge assures us this case was not under AEDPA jurisdiction-the defendant constantly in court for this case starting in1996. The record reflects that the prosecutor asked a psychiatrist Dr. Gerow to interview the defendant and  determine his legal competency. After his examination the doctor concluded the defendant incurably violent, and testifies to his opinion at trial.  According to the 9th Circuit panel, a Supreme Court case rejects this process without a Miranda admonition and used as an admission of responsibility by the defendant.

At the trial the doctor testified he did not use the Miranda admonition and asked no incriminating statements from the defendant. The doctor only examined for legal competency and his testimony included nothing about an admission of complicity in the crime. Despite that, the panel concluded his testimony inadmissible.

Two defense doctors submitted their report on the same issue of competency, but without testimony, and concluded curability33 was a possibility.  Now the panel concludes no testimony and only a written report by defense doctors  overcomes the live testimony of a colleague. Apparently the court panel has never tried a case when the direct testimony of  a witness (a doctor who is not a detective) lacks the veracity over two written reports.  But the panel needs an excuse.

The panel criticizes the state court judge who had affirmed the conviction and lists his errors. For example, they commented on Doctor Gerow who did not interview the defendant on April 20, but on April 21. Devastating. The balance of the “list” of errors is equally trivial.

. Apparently the panel, who were not at the trial, decided the case for the jury. In fact, the panel offered their own opinion of the doctor whose testimony they had reviewed in an earlier case. Evidence by a witness who the panel had not seen as jurors did, was not  admitted at trial because the doctor had not Mirandized the defendant prior to a legal competency test.

One of the worst cases I have ever read.  Now the prosecution must  call all the witnesses again to hear evidence only on the death penalty. And people criticize California courts for tardy disposition of cases. The year 1996 and this case is still in federal courts on a simple ten day trial obviously warranting the death penalty.

The second judge on the court panel wrote an  equally absurd concurrence. the third judge signed nothing.