<< Retrospective Competency and Burden of Proof | Main | News Scan >>

More Fallout from Swarthout v. Cooke

Bob Egelko of the SF Chronicle reports:

A U.S. Supreme Court ruling prohibiting federal judges from overturning state parole decisions has nullified court orders favoring two men convicted of Bay Area murders.
Paul Tash, was convicted of second-degree murder for fatally shooting a friend through a door at a drug dealer's San Francisco home in 1983. The other, Ron Mosley of Oakland, pleaded guilty to second-degree murder for stabbing his boss to death in an argument over a $60 payment for yard work.
*                              *                              *
The state parole board had found Tash suitable for release in 2004 and Mosley in 2005. The board said both men had done well in prison work and therapy programs and were no longer dangerous.
[Governor] Schwarzenegger overturned both decisions, citing the callous nature of the murders, as he did in most such cases. He also said Tash had shown a lack of insight into his crime by maintaining that he shot in self-defense, and that Mosley had a record of disciplinary offenses in prison.
Both men lost appeals in state court but had temporary successes in federal court.

That is, until the Supreme Court's forceful reminder last week that federal courts do not enjoy the role of final gatekeeper for California parole-eligible inmates.  The Ninth Circuit this week was forced to correct its earlier mistake of brushing aside the state's parole-suitability determinations, and imposing its own (or in Tash's case, that of a federal district judge). 

Noting that Mosley's parole hearing was conducted procedurally correctly, the Ninth Circuit concluded, "According to the Supreme Court, that is 'the beginning and the end' of our inquiry."

See also yesterday's post on another parole case here.


I had to laugh out loud at the Ninth Circuit's statement that Swartout changed the legal landscape. I didn't know it was possible for a per curiam summary reversal to do so.

I don't have the citation handy, but I believe the Supreme Court has expressly said that it only issues these kinds of reversals when doing so requires making no new law.

I just thought that the Ninth's choice of language sanitized what actually happened. As a practical matter, the legal landscape was changed, which actually is pretty damning if you think about it since Swarthout v. Cooke addressed a weed that was threatening to choke the whole garden.

Leave a comment

Monthly Archives