Last December, in Hedgpeth v. Pulido, the Supreme Court reversed a decision of the Ninth Circuit, which had declared a garden-variety instructional error to be "structural error" and hence immune from "harmless error" review. This holding was so wrong that not even defense counsel defended it. Three justices dissented, not because the Ninth was right in its approach but because they thought that court had "substantially" applied the correct Kotteakos/Brecht standard even while mangling the terminology. The District Court decision the Ninth was reviewing had applied that standard.

On March 20, the Ninth Circuit remanded the case to the District Court "for further proceedings in accordance with the Supreme Court's determination that the appropriate standard of review in a case under the Antiterrorism and Effective Death Penalty Act of 1996 is harmless error, rather than structural error, when a jury is instructed on alternative theories of guilt." Um, what further proceedings? The Supreme Court decided that the District Court had applied the correct standard the first time. The only remaining dispute is whether it applied that standard correctly. That is why the Supreme Court "remand[ed] to the Court of Appeals for application of Brecht in the first instance." (Slip op. at 5.)

Today, the Ninth Circuit unremanded the case and directed more briefing on the question the Supreme Court directed it to decide. All of this would have been unnecessary if a Ninth Circuit precedent, Lara v. Ryan, 455 F. 3d 1080, 1086 (CA9 2006) (by Judge Betty Fletcher), hadn't mucked it up in the first place.

Fortunately, this is not a capital case, so Pulido continues serving his well-deserved sentence while all this goes on.