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Growing Sense at the Ninth


As 2007 winds down, we have another welcome piece of evidence that persons of sense are reaching critical mass at the notorious U. S. Court of Appeals for the Ninth Circuit. Judge Stephen Reinhardt, the epitome of judicial activism, has long been infamous for the rate at which he is reversed -- sometimes unanimously -- by the Supreme Court. Today, in Smith v. Baldwin, though, he was reversed 13-2 by the Ninth Circuit itself.

The case arises from the 1989 burglary of the Oregon home of Emmett and Elma Konzelman, then aged 87 and 74. Roger Smith and Jacob Edmonds entered the house. The Konzelmans were beaten with a crowbar, and Mr. Konzelman died of his injuries.

In most states, these facts alone would be sufficient to make both perpetrators guilty of felony murder. Constitutionally, neither would qualify for the exclusion from the death penalty that the Supreme Court has created for minor accomplices swept up in the felony murder rule. See Tison v. Arizona, 481 U.S. 137 (1987) (reckless indifference sufficient). From the testimony of the surviving victim, we know that one entered the bedroom to commit the assault while the other stood at the doorway. Unfortunately, she cannot say which was which. Under Tison, it wouldn't matter for the purpose of the substantive Eighth Amendment limit on capital punishment. Standing by while your burglary accomplice beats an elderly couple with a crowbar and doing nothing to stop him or help them surely qualifies.

Oregon has mitigated the harshness of the felony murder rule with an affirmative defense for a participant in the felony who did not commit or assist the homicide, was not armed, had no reason to believe the other was armed, and had no reason to believe the other would kill. Let no good deed go unpunished. By providing this affirmative defense as a matter of state law, Oregon must litigate in federal court issues that wouldn't be issues in most states.

As is typical in such cases, the prosecutors needed to make a deal with one of the devils. They offered the deal to Edmonds, contingent upon his passing a polygraph test in which he was asked, among other things, whether he or Smith was the actual killer. The test was inconclusive, but they went through with the deal.

Smith wants to litigate in federal court claims of ineffective assistance and nondisclosure of evidence that he had previously abandoned in state court. This is not a case of claims being inadvertently omitted or only discovered later. This is deliberate abandonment of claims of the kind that would have been sufficient to bar federal review even at the peak of federal habeas in the Warren Court era.

Now, though, we have the "actual innocence" exception of Schlup v. Delo, 513 U.S. 298 (1995). Smith claims he is innocent under the Oregon defense to felony murder, armed with affidavits from Edmonds saying Smith didn't commit the actual killing. Today's concurring opinion quotes Judge Bybee's panel dissent for the characterization of Edmonds' statements: “Edmonds has given many accounts of that evening, which together encompass nearly every possible way that the burglary and murder might have occurred.”

Naturally, if Edmonds did not testify truthfully in the beginning, his plea deal is off, and he is subject to prosecution for capital murder. When informed of that, he refused to testify, so there was no evidentiary hearing. Judge Reinhardt characterizes informing Edmonds of this as "egregious prosecutorial misconduct," repeating the position of his original panel majority decision.

Today's en banc majority does not resolve whether this is misconduct. There is a more basic problem. Smith's evidence does not establish his innocence. First, there is no question whatever he is guilty of burglary. Second, his evidence doesn't come close to establishing the elements of the affirmative defense that Oregon has generously provided. See the majority and concurring opinions for the details. To find to the contrary, you would have to imagine an extremely unlikely scenario, and the Schlup test doesn't permit a reinstatement of defaulted claims on such a flimsy basis.

It was President Jimmy Carter who made the Ninth Circuit what it has been -- an exemplar of what a court should not be. With his own party firmly in control of the Senate, he was free to appoint result-oriented activists willing to trample the law to achieve their own objectives of policy. With a few notable exceptions, that is just what he did. President Clinton was more restrained, probably not because he wanted to be but because control of the Senate by the other party for most of his term left him no choice. With six appointments by President Bush, the ship still lists to the left, but there is reason to hope. We are seeing more rogue decisions from the left, like the panel opinion in this case, corrected en banc.

What will 2009 bring? Who knows? Certainly it is possible we will see the monster return, as in a bad horror movie. We may once again have a left-leaning President with a Senate of the same party. Time will tell. For now, at least, things are looking better for justice on the Left Coast than they have for a very long time.


Although the Ninth Circuit majority likely did the right think by assuming arguendo that there was misconduct, the idea that telling a criminal that certain testimony will break the plea deal is misconduct is utterly ridiculous.

The epitome of judicial activism or the apotheosis? Of course, on the Ninth, Reinhardt probably is better described as the epitome, given that he has company.

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