Welcome to 2011. Reno police arrested a woman, placed here in the police car and transported her to the station. During her incarceration she committed suicide. Her estate sued the Reno Police Department. The 9th Circuit majority panel held her estate could proceed with her case. Here is a quote from the dissenting 9th Circuit judges who wrote in Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) in response to denial of a request for a rehearing en banc: “Until this opinion came along, police officers weren’t required to serve as babysitters, psychiatrists or social workers, and judges didn’t run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micro manage the police, who in turn will serve as mental health professionals. The panel’s reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions.”
“At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists . . . This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat.”

The City filed a cert. petition in the Supreme Court. Granted and remanded; 131 S.Ct. 1812(2011)
7/28/2011: On the face page of this website is a reference to 9th Circuit cases reversed by the Supreme Court. Here is the rationale underlying the record number of reversals:

In its 2010-2011 term the Supreme Court has set another record in reversing the 9th Circuit. Additional 9th Circuit cases remain on the Supreme Court docket in 2011, also likely candidates for reversal in the next term, but the current record will probably equal the 2009-2010 figures. During that term the Justices reversed the 9th Circuit twenty out of twenty one cases.

The reversal record during the last decade is substantially similar, and several Supreme Court decisions are not written in the conventional 5-4 split among Justices. The Supreme Court frequently reverses the 9th Circuit unanimously, and in some cases unauthored, noted only as per curium opinions. U.S. v. Gonzalez, 2011 WL 2518818. And the number of cases reversed does not include obscure or narrow rulings on cases of little interest except to the parties. Supreme Court reversal of 9th Circuit cases repeatedly consists of state court criminal trials and convictions concluded after jury verdicts, confirmation by the trial judge, affirmed by state supreme courts on appeal, and appeals from U.S. District Court denial of petitions for habeas corpus.

The principle reason for Supreme Court reversal of 9th Circuit cases is its evasion of the Anti Terrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C.A. 2254 (d) (1) (2) enacted by Congress in 1996 to rein in federal appellate courts reviewing state court convictions and sentence on habeas corpus. The statute provides federal jurisdiction to grant habeas corpus relief of a state court decision adjudicated on the merits only if it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceedings.”

Congressional intent is clear: in habeas corpus proceedings a federal court must comply with the twin requirements of AEDPA clauses by applying a standard of “reasonableness” in its decision. The Supreme Court has interpreted this statutory language by requiring federal courts to respect state court judgments incorrectly decided, as distinct from unreasonably decided. In addition, federal courts cannot review state court convictions de novo, and must defer to state courts despite disagreement with the result. Harrington v. Richter, 131 S.Ct. 770 (2011); Horel v. Valdovinos, 131 S.Ct. 1042 (2011).

During its current term the Supreme Court continued to reverse the 9th Circuit numerous times for non compliance with AEDPA on the issue of habeas corpus, and simultaneously widening the scope of statutory application. In Cullen v. Pinholster, 131 S.Ct. 1388 (2011), a conviction in state court for murder committed in 1982, the 9th Circuit allowed petitioner to present evidence in federal court previously undisclosed in his prior habeas proceedings in state court. The Supreme Court chastised the 9th Circuit for this extraordinary procedure and disallowed any further habeas corpus review to evade “congressional intent to channel state prisoners’s habeas claims first to the state courts.” Pinholstser @ 1398.

A 9th Circuit panel had approved a similar procedure in Detrich v. Ryan, 619 F.3d 1039 (9th Cir. 2010) by allowing the U.S. District Court to consider evidence never presented to the state court. As the Supreme Court notes, to allow this 9th Circuit practice would convert state court trials and appellate review into a “warm up” for federal courts. The Supreme Court, citing Pinholster, reversed. Ryan v. Detrich, 131 S.Ct. 2449 (2011).

Avoiding the stated purpose of AEDPA, and ignoring Supreme Court jurisprudence, the 9th Circuit during the last decade has reversed almost every death penalty case on habeas corpus review of state courts within its federal jurisdiction. Equally relevant, the vast majority of these cases are not reversed for contentions of “factual innocence,” but on grounds the lawyer who represented the defendant did so “ineffectively.”

The source of the claim of “ineffective counsel” arises from the 1984 case of Strickland v Washington, 466 U.S. 668 (1984). The Supreme Court held federal courts on habeas corpus must presume defense counsel effectively represented their clients, and a petitioner must also establish prejudice to his case. Ineffective counsel, if established by the evidence, warranted reversal of the conviction. The Supreme Court in Strickland reminded federal courts of the easy temptation to second guess counsel, or engage in hindsight, and reminded judges to examine the entire record in determining whether a lawyer failed to represent the petitioner to the extent the conduct undermined a fair trial.

Strickland became the cornerstone for 9th Circuit reversals of state court convictions. Ignoring AEDPA, citing useful snippets from Strickland, improperly reviewing habeas corpus petitions de novo, and dismissing deference to state courts, the 9th Circuit rarely found any lawyer represented a client “effectively” in a death penalty case. In the current Supreme Court term, the Justices in Harrington v. Richter, 131 S.Ct. 770 (2011) reminded the 9th Circuit to review Strickland under “double deference.” First, to apply AEDPA with deference, and then apply Strickland under a doubly deferential standard. The test in reviewing performance of counsel is not legal strategy, said the Supreme Court, but whether legal errors were so serious the right to counsel guaranteed by the Sixth Amendment had been jeopardized.

Reading the record of state court trials reflects the 9th Circuit repeatedly criticizing counsel’s courtroom strategy in cases written by appellate judges who did not interview the petitioner, saw no witnesses, heard no testimony, and were unaware of the consequences of admitting evidence for the petitioner subject to damaging rebuttal. Whether an attorney performed according to the ‘prevailing professional norms’ is the test, not whether counsel deviated from best practices or common custom. Premo v. Moore, 131 S.Ct. 733 (2011).

Pinholster was convicted in 1982; Richter in 1994; Moore pled guilty in 1995. And these cases are not exceptions. Not only wrongly decided, the chances of retrial decades later are remote.

The 9th Circuit has invoked habeas corpus to overrule state supreme court cases on a variety of grounds other than ineffective counsel including re weighing the evidence, a function obviously the province of the jury. The Supreme Court has reversed and remanded Patrick v. Smith, 131 S.Ct.1134 (2010) twice based on grounds asserted by the 9th Circuit that “no rational jury could find the defendant [Smith] guilty.” The case has been rewritten by the 9th Circuit a third time with the same result as its first opinion. Smith v. Mitchell, 624 F.3d 15 (9th Cir. 2010).

In McDaniel v. Brown, 130 S.Ct. 665 (2010) the 9th Circuit had granted a writ of habeas corpus in a state court case, agreeing with the defense version of the evidence at trial in a decision apparently adopting defense counsel’s closing argument that the insufficiency of the evidence did not warrant a conviction. Reversing a case on grounds the defense version of the evidence more credible than the prosecution is extraordinary. The 9th Circuit not only ignored AEDPA but affirmed a U.S. District Court ruling allowing the petitioner, again, to produce conflicting DNA evidence in a hearing conducted after the trial had concluded. Unsurprisingly, the Supreme Court reversed.
In its quest for error, the 9th Circuit also scrutinizes the records of jury selection to determine whether the prosecutor impermissibly excused a minority juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986) a Supreme Court case prohibiting prosecutors from excusing jurors peremptorily on grounds of race. 9th Circuit panels have dismissed the ruling of trial judges denying a defense motion asserting prosecution bias, ignored the state court favorable review of voir dire, and unilaterally disagreed whether a neutral reason explained prosecution exercise of a peremptory challenge on racial grounds. The 9th Circuit reads a written record, unfamiliar with any of the jurors, their demeanor, their voice, conflicting answers to questions, the nature of the case or the intuition of trial lawyers. In Rice v. Collins, 546 U.S. 333 (2006) the Supreme Court reminded the 9th Circuit of the superior insight possessed by the trial judge compared to a reading of the cold record on appeal.

In most cases the 9th Circuit scours the entire record on voir dire to discover some hint of prosecution bias. In contrast, but with the same goal, the panel in Felkner v. Jackson, 131 S.Ct 1305 (2011) wrote a three paragraph unpublished decision, unaccompanied by any explanation, rejecting the prosecutor’s rationale for excusing two African American jurors. On review by the Supreme Court the Justices reversed, commenting the unpublished opinion “inexplicable and unexplained.”

The Supreme Court has not confined its reversals of the 9th Circuit solely to habeas corpus decisions reviewing criminal trials in state courts. In 2008 the California Supreme Court began easing parole conditions administratively applied by the Board of Prison Teams. In re Lawrence, 44 Cal.4th 1181 (2008). Under prevailing parole practices, the Board had focused heavily on the facts of the underlying offense, considered the nature of the crime, the extent of complicity, the absence of motivation, and the use of brutality and violence. The Governor, under his Constitutional authority to review parole decisions, relied on the same issues.

The California Supreme Court in Lawrence held the nature of the crime committed should not constitute the principle reason for granting or denying parole. The Board should consider whether “some evidence” existed to establish the applicant for parole constituted a “present danger” to the public, an amorphous and subjective test resulting in a torrent of inconsistent California Court of Appeals decisions.

After the In re Lawrence decision, the 9th Circuit, again invoking its habeas corpus jurisdiction, immediately began overruling state court parole decisions, and imposed its own view on whether the Board should grant parole to an applicant. Pirtle v. California Board of Prison Terms, 611 F.3d 1015 (9th Cir. 2010). But seven months after the Pirtle decision the Supreme Court decided Swarthout v. Cooke, 131 S.Ct. 859 (2011) and five other decisions, substantially removing jurisdiction from the 9th Circuit to hear parole applications. Horel v. Valdovinos, 2011 WL 197628. The Supreme Court then vacated the 9th Circuit earlier decision in Cate v. Pirtle. 2011 WL 2297791 (U.S.).

The Justices administered a stinging reproach to the 9th Circuit, ordering no further federal interference in California state court decisions on parole. The Supreme Court held deciding constitutionally adequate procedures in the California parole system “is no part of the Ninth Circuit’s business.” Swarthout, @ 862.

The current Supreme Court term also produced a case from the Supreme Court departing from its normal jurisdictional role in qualified immunity cases. If a court reviews evidence at trial and concludes a Constitutional violation occurred but a public official is entitled to qualified immunity, there is no reason to rule whether any legal error occurred warranting reversal. Pearson v. Callahan, 555 U.S. 223 (2009).

Subsequent to Pearson, the 9th Circuit held that the Fourth Amendment requires police to obtain a search warrant before interviewing a student in school who had alleged a sexual violation, but no liability attached on grounds the officers were entitled to qualified immunity. Green v. Camreta, 588 F.3d 1011 (9th Cir. 2009). The Justices, stunned at oral argument to understand the Constitutional Fourth Amendment basis for this decision, realized if it refused to decide the case already resolved in favor of the officers by qualified immunity, the principle announced by the 9th Circuit requiring a search warrant would stand. Carving an exception to its general rule in avoiding Constitutional issues unless necessary, the Supreme Court vacated the entire case, despite the officers having prevailed on immunity, in order to avoid the underlying 9th Circuit rationale to become precedent in this case mandating a search warrant. Camreta v. Greene, 131 S.Ct. 2020 (2011).

Not all 9th Circuit judges have agreed with the decisions cited above. Dissents have been frequent, critical, and in some cases, scorching. Reversal by the Supreme Court confirms the validity of their dissents. These criminal cases do not garner the publicity of the Wal Mart Stores, Inc. v. Dukes decision, 2011 WL 2437013 (U.S.) or Chamber of Commerce of the U.S.A. v. Whiting, 131 S.Ct. 1968 (2011), two other 9th Circuit cases reversed by the Supreme Court. But either individually or collectively the impact of the 9th Circuit decisions on the judicial system undermines the comity of the courts, erodes federalism, and delays the finality of closure.


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