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The Pinholster Case

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The Supreme Court today granted certiorari in the California death penalty case of Cullen v. Pinholster, No. 09-1088. AP story is here. The Ninth Circuit en banc opinion is here. The first three paragraphs of Chief Judge Kozinski's dissent are after the jump.
The California Supreme Court twice considered Pinholster's claim that his death sentence be set aside because his lawyers performed ineffectively, and twice rejected that claim on the merits. Under AEDPA, those determinations come to us encased in a double layer of deference: first, the substantial deference to which lawyers are entitled under Strickland in making judgments during the course of their representation; and, second, the deference to which the state court is entitled in determining whether the lawyers' performance was  ineffective and prejudicial. The first layer of deference may be overcome only if counsel's performance was objectively unreasonable under prevailing norms at the time and place oftrial. The second layer may be overcome only if the state supreme court's determination is contrary to or an unreasonable application of clearly established Supreme Court authority. Pinholster comes nowhere close to flipping this "doubly deferential" presumption. Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).

The majority reaches the contrary conclusion through a series of mistakes that have, unfortunately, become far too common in our circuit. First, the majority relies on evidencenever presented to the state courts and that we may therefore not consider in federal habeas proceedings governed by AEDPA. Contra Williams v. Taylor (Michael Williams), 529 U.S. 420, 437-40 (2000). Second, the majority applies retrospectively a standard for counsel's performance that bears no relationship to that prevailing in California at the time of Pinholster's trial in 1984. Contra Bobby v. Van Hook, ___ S. Ct. ___, No. 09-144, slip op. at 3-8 (2009) (per curiam). Third, and perhaps worst of all, the majority accords no deference to the California Supreme Court's superior expertise in determining what constitutes competent representation among the members of its bar and the likely consequences (or lack thereof) of any deficient performance. Contra Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007).

Few state court judgments can withstand even one such error, see, e.g., Jones v. Ryan, ___ F.3d ___, 2009 WL 3152396 (9th Cir. Oct. 2, 2009); Libberton v. Ryan, ___ F.3d ___, 2009 WL 3152389 (9th Cir. Oct. 2, 2009); Gilley v. Morrow, 246 F. App'x 519 (9th Cir. 2007) (unpublished); Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004); see also cases cited pp. 16115-16, 16151-52 infra, but in combination they are deadly. I had hoped that our en banc court would sweep away these mistakes and bring our caselaw into conformity with AEDPA. Instead, the majority repeats and magnifies the errors in these prior cases so that they will be very difficult, probably impossible, for us to correct. This perpetuates a habeas regime where few death sentences are safe from federal judges who know ever so much better than those ignorant state judges and lawyers how capital trials ought to be conducted. Because I don't believe we are the ultimate font of wisdom on such matters, I must dissent.

Unfortunately, the Court denied certiorari today in one of the other erroneous decisions mentioned by CJ Kozinski, Ryan v. Libberton, No. 09-1208.

1 Comment

It would seem to me that the existence of mental defect on Pinholster had already been considered in the original trials and were presented there. Whatever name it was given he was found competent to stand trial.

The original psychiatrist spent one to two hours talking with Scott Pinholster, who presented himself as a functioning human being, aware of his situation. I assume Pinholster was not in a vegetative state, wasn't speaking gibberish or hallucinating.

Organic brain damage in a very young child is not something the brain can't compensate for by finding new pathways. It happens all the time. He functioned well enough to form a relationship. He was married. He left his parents home. By his own admission on the witness stand he earned an "income" by stealing from drug dealers.

Unless one wants to consider the genetic "brain damage" inherited at conception, from his natural father as justification, which would then be a judgement call, for which we could all be free to live lawless, I don't see room for an appeal.

It would appear that there wouldn't have been much else an attorney could have done for Pinholster once he declared his intention to take the witness stand, which was his right and of which he was aware. How much time were they expected to spend once that was made clear to them.

He was acting as his own attorney before choosing to ask for attorneys. He knew he was facing the death penalty, he had been notified, which is probably why he asked for attorneys. He forgot to talk with them and notify them?

Was he so arrogant that he felt he could garner sympathy from a jury on his own. Or was he remorseless because he thought he was entitled to his pursuit of happiness which included murder, burglary, robbery? Everyone would understand?

His natural father was diagnosed as having a narcissistic personality disorder I read in one of the proceedings. It is inheritable genetically in a small percentage of cases. I am acquainted with his natural father. There seems to be a lot of parallels in personality between father and son. The arrogance, entitlement, the dependency, lawlessness and manipulation.

Pinholster would have been capable of discussing childhood brain injuries with the original psychiatrist. He had obviously used the epilepsy defense more than once in his lifetime to justify his misbehavior. Was off and on treated for it. To say he was not aware of the cause of that condition was a far reach.

The pschological damage of young child by being abandoned by his father, and raised by a young woman who was abandoned also with three small children is another issue. That was presented during the penalty mitigation, a reasonable defense by his attorney. Having spent time with his natural father, it bothers my heart, as it apparently it did the hearts of ex-wives his natural father abandoned, who gave their testimonies at some point over the years.

That it didn't reach the heart of one juror, says that the ACLU is wanting another set of jurors in hopes of reaching one this time. And if they don't, do we continue until we find one? In their hopes of abolishing the death penalty as cruel and unusual punishment.

How did Polly Klaas feel" Do we let Richard Allen Davis free? The Night Stalker murdered 30 people, Do we let him go? I would say a 21/2 day deliberation wasn't a rush to judgment. It only takes one dissenter.

I personally am conflicted by this case. I voted to re-instate the death penalty years ago. A murderer doesn't consider the rights of their victims. Didn't hear the victims appeals. They take it upon themselves to be the judge, juror and executioner. Judge not least ye be judged, the Bible says. least you bring judgment down on yourself. It would appear that one who chose to be be the judge, juror and execution should be willing to die a hero for living by his convictions. A martyr for the rights of others of his own ilk?

All these court appeals are so much fighting for a murder's rights to kill and not be killed, if reduced to it's lowest common denominator. Protection under the societal laws because we as membersare all "bleeding heart liberals" who wouldn't dream of "killing" another living being. To me it's a form of manipulation, all this posturing and appeals. Arrogance. Contempt for idiots who would set them free to kill again. It's their right to do so. They deserve to do what pleases them, don't inconvenience them? Are we all nuts? Apply the Golden Rule, it works both ways. Has a murder treated others as he/she would be treated? Are we being cruel in treated that person as they would be treated?

"The message from God" testimony in court. Is that evidence of mental illness Or was he just drunk, high and feeling all powerful as a result of partying. The perfect host stealing money for beer and pot for his party. It was more important to put on a party for friends, than the lives of his victims who were in his way?


Thoughts to ponder. There are people who sat on that jury who I am sure considered carefully their decision. To rule that a person should die would weigh heavily on one's soul. The verdict was not given lightly. I am but one person. I have read the decision the US Supreme court has been asked to decide.

The jury was aware there was some problem with Pinholsters brain. Without a shrink to give it a name, he murdered 2 people over drugs and $23 dollars and was remorseless. Lack of adequate representation. Pinholster chose to take the witness stand. Was hell bent on it apparently. What could his attorneys do? Have him declared insane. Looks like they already tried to do that with the mental evaluation. He obviously presented himself in such a way with the psychiatrist as to be found competent to stand trial, that his attorneys and doctor felt the prosecutions doctors would have found the same.


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