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Human Experience Ruling Overturns Conviction:  Bob Egelko of the SF Chronicle reports that a Ninth Circuit panel has overturned a habitual criminal's conviction of assaulting a police officer because the judge instructed the jury to put their personal experiences and opinions aside when judging the facts in the case.  The Ninth Circuit panel's 2-1 ruling announced yesterday determined that Supreme Court decisions, including those baring race and sex discrimination in jury selection, have established that a defendant has the right to a jury "informed by the full range of human experience." The opinion is by Judge Noonan, joined by Judge Berzon. Like dissenting Judge Sandra Ikuta, we did not know that there was high court precedent supporting that.  Looks like another way to get around the AEDPA deference requirement.  This is very much like the button case, Carey v. Musladin, in which the Ninth was reversed unanimously. The defendant, Frank Taylor rammed a stolen vehicle into Sacramento police cars before his arrest after a high speed chase.  It was Taylor's third strike.      

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Was Knowles the button case? I thought that was Musladin.

Right. The original post has been corrected. USCA9 cases screwing up AEDPA and then unanimously reversed are so numerous it is easy to confuse them.

The funny thing (putting aside the fact that the Ninth is giving a career criminal a shot at freedom) is that, while odd, the judge's instructions don't seem to be close to unconstitutional. The judge, it seems, was using the box instruction to get jurors to set aside their prejudices.

The Ninth, on the other hand, cobbled together a number of cases on the composition of the jury, which are inapposite. And then there's this bon mot: "That deprivation was deprivation of the diversity of human experience to which the defendants were entitled and which is the governing principle here." But that diversity of experience is only a process guaranty, not a substantive one--no one is entitled to a diverse jury, but rather fair procedures to choose the jury.

And was Head v. Hargrove even a constitutional case? If not, it's "off the table."

On the heels of Musladin, where the CA9 made up a rule about buttons (and got reversed), and Knowles, where it made up a rule requiring counsel to pursue motions whenever there's "nothing to lose (and got reversed), the CA9 decided Wong v Smith, where it made up a rule that judges may not comment by directing the jurors' attention to certain items of evidence for their consideration (cert pet pending). Now this. And that's not all. Also yesterday, the CA9 in Lunberry v Hornbeak managed to find "clearly established law" in Chambers v Mississippi -- something Scalia says is impossible. As it turns out, Chambers is not a case vaguely about "mechanistic" exclusion of explosive evidence of a third party's confession to the charged crime. Instead, it's a case about excluding hearsay evidence of a dead guy's statement implying that an unknown fourth party committed the crime -- even though the defendant herself had confessed. Who knew!

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