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Simply Indefensible

For the second time in two terms, a habeas petitioner who prevailed in the Ninth Circuit has abandoned that court's opinion when the merits of the case reached the U.S. Supreme Court. Previous posts on last term's Hedgpeth v. Pulido are here, here, and here.

This term we have McDaniel v. Brown. I previously noted what a stinker the Ninth Circuit's opinion was. Was it really that bad, you might ask. No, it was worse. Counsel for Brown filed their merits brief Friday. As noted in the prior post, the Ninth used Jackson v. Virginia to decide that the evidence in Brown's trial was insufficient after first deciding it would ignore the prosecution's key evidence, DNA, that it considered unreliable on the basis of an affidavit presented for the first time on federal habeas. Friday's brief for Brown concedes, "The purpose of a Jackson analysis is to determine whether the jury acted in a rational manner in returning a guilty verdict based on the evidence before it, not whether improper evidence violated due process," which the state has been saying the whole time. The brief then goes on to try to salvage the case with the sweeping assertion that there is a general due process protection against unreliable identification evidence, an argument complicated by the fact that the Supreme Court rejected a very similar argument just 3 months ago in Kansas v. Ventris, slip op. at 7, n. *. See CJLF Brief at 26-27.

There is something seriously amiss with a court that repeatedly issues opinions so wrong that even the prevailing party can't defend them. In every crop there will be some outliers, but the en banc review process is supposed to cull them out. The state petitioned for rehearing en banc in both Pulido and Brown, and the Ninth Circuit denied both petitions. You need to look at these petitions more carefully, Ninth Circuit judges. The reputation your circuit has is not a bum rap. Cases such these illustrate that it is thoroughly deserved.


"The brief then goes on to try to salvage the case with the sweeping assertion that there is a general due process protection against unreliable evidence . . . ."

How does the brief get around the AEDPA problem? Also, aren't there issues with fair presentment, as it seems highly unlikely that the "sweeping assertion" was presented to the state courts with the required amount of clarity.

I don't envy the attorneys for the criminal here.

You may well be right that Brown is an indefensible decision, but I disagree that the answer is additional grants of en banc review. As CJLF probably know better than most, en banc review is costly and time-consuming, especially in the Ninth Circuit. Its overriding purpose is to address issues of exceptional importance or resolve tensions in the circuit's case law, not overrule decisions that are just wrong. The better solution to my mind is for the Supreme Court to issue summary reversals in cases like Brown--or, for that matter, Bobby v. Bies from this term. Although I don't have the numbers in hand, it certainly seems to me that the Roberts Court has been less inclined to issue summary reversals in habeas cases. (A quick search of the court's website suggests that not a single summary reversal was issued in a habeas case this term; even Hedgepeth was briefed and argued.)

Legal, the problem is that SCOTUS only has time for so much, and a bad Ninth Circuit precedent can affect other cases until it's corrected. I agree that in a particular case, it's better to have a SCOTUS smackdown, if for no other reason than the sheer satisfaction of it, but on the whole, the administration of justice is better served if the en banc court corrects egregious missteps.

The response completely changes the game in this case. What's the remedy? Certainly, the reply brief should be allowed to be expanded to deal with this. Also, if the federal habeas petition argued Jackson, there should be sanctions.

The list of rules violated by raising a new legal theory at this stage of proceedings is long. The chance that the Supreme Court will address the argument on the merits is infinitesimal.

Let's hope so. The respondent's suggestion that the case be dismissed as improvidently granted seemed very piggish. I hope that's not well-received.

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