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Recent and Quasi-Recent Filings

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The Criminal Justice Legal Foundation has filed three amicus briefs in the United States Supreme Court in the last month: Ayers v. Belmontes, Carey v. Musladin, and Whorton v. Bockting. All three are habeas corpus cases from the Ninth Circuit, and in all three the Ninth Circuit decided in favor of the habeas petitioner.

Ayers v. Belmontes, No. 05-493, filed June 19, is a case where the Ninth Circuit split hairs to evade a Supreme Court precedent on point. In the case of the brutal and senseless murder of a 19-year-old girl, just to steal her stereo, the jury was given the then-standard instruction on mitigating evidence, an instruction specifically upheld by the Supreme Court 16 years ago in the case of Boyde v. California. The Ninth Circuit's decision claims that Boyde's approval of this instruction does not extend to evidence offered to negate future dangerousness as opposed to evidence offered to give a psychological explanation of the defendant's commission of the crime. The Ninth Circuit persisted in this error even after being told to reconsider by the Supreme Court. See Judge Callahan's dissent from denial of rehearing en banc.

This decision is a misinterpretation of Boyde, contrary to other Supreme Court precedents, and illegitimately changes the rules long after the sentence was final. Regarding the latter point, our brief asks the Supreme Court to declare that new rules which only affect the sentence and not the determination of guilt should never apply retroactively to judgments which are already final. This would eliminate a significant amount of litigation over the exception to the general rule of nonretroactivity that the Court created in the 1989 case of Teague v. Lane.

In Carey v. Musladin, No. 05-785, filed June 22, the Ninth Circuit overturned a California conviction for murder and resulting life sentence because members of the victim's family wore buttons with his picture during the trial. The California Court of Appeal decision finding this nonprejudicial and not reversible error is arguably contrary to an earlier Ninth Circuit decision, but it is in accord with the overwhelming weight of authority throughout the United States. In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress limited the authority of the federal courts to overturn decisions of state courts. The pertinent section here limits that power to cases where the state court decision is contrary to or an unreasonable application of Supreme Court precedent. The Ninth Circuit in this case did exactly what Congress prohibited: overturn a state decision for a supposedly incorrect application of the Ninth Circuit's own idiosyncratic precedent. Our brief asks the high court to establish a bright-line rule that a decision consistent with the weight of authority is per se a "reasonable" decision within the meaning of AEDPA.

Whorton v. Bockting, No. 05-595, filed July 20, involves the Supreme Court's decision two years ago in Crawford v. Washington to completely rewrite the rules on when a defendant has a constitutional right to exclude the out-of-court statements of persons he cannot cross-examine. Does this decision require that cases correctly decided under the old rule be overturned? The impact of such retroactivity would be devastating, as confrontation is a common issue, and a very large proportion of the cases of inmates in prison (over 1.4 million, as of Dec. 31, 2004) would be affected.

Fortunately, such disastrous retroactivity is blocked both by the rule Teague v. Lane and by the AEDPA. The Nevada Supreme Court's 1993 decision in this case is a careful and correct application of the Supreme Court precedents in effect at the time. The AEDPA protects such decisions from overturning by the lower federal courts, and it makes no exception for subsequent changes in the law.

The Ninth Circuit's decision that it can apply Crawford retroactively is incorrect, as explained in our brief, Judge Wallace's dissent, Judge O'Scannlain's dissent from denial of rehearing en banc, and the brief amicus curiae of Texas, California, and 36 other states. (We will also provide links to Nevada's brief and the U.S. Solicitor General's, when available.) But what is truly bizarre is Judge Noonan's concurring opinion that Crawford is not a new rule at all. This opinion is, quite possibly, the most blatantly contrary to controlling authority of any opinion issued by any federal judge in modern history. It will be interesting to see what the Supreme Court says about it.

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Noonan's Bockting excursion from the law is not an isolated incident.

The brief makes reference to the ability of Congress to limit collateral review of state criminal judgments. Isn't there a pending Ninth Circuit case dealing with that very issue. If so, I guess Kent is taking a pre-emptive strike.

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