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The Ninth Circuit "Steams Defiantly Ahead"

For the second time in as many years, the Ninth Circuit tossed the conviction of Johnathan Doody, accused of killing six priests, a nun, and two helpers at a Buddhist temple outside Phoenix in 1991.  The victims' bodies were found face down in a circle, each shot in the head.  Doody, 17 at the time, confessed after 12 hours of interrogation.

Last year on federal habeas review, the Ninth Circuit granted relief after determining the Arizona courts unreasonably found the Miranda warnings administered to Doody adequate and his confession voluntary.  The U.S. Supreme Court vacated the Ninth's judgment and remanded the case in light of Florida v. Powell, 130 S.Ct. 1195 (2010), which reaffirmed that Miranda warnings need not be in any explicit form as long as they reasonably convey a suspect's rights. 

The Ninth didn't budge in an en banc opinion by Judge Rawlinson, despite this term's consistent reminders to the court of the appropriate deference due under AEDPA:

Because the facts of this case differ so markedly from those in Powell, we continue in our view that the Miranda warnings provided to Doody did not clearly convey his rights to an attorney, and that the Arizona Court of Appeals unreasonably applied Miranda in ruling to the contrary.
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The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day.  However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

The dissenters (Judge Tallman, joined by Judges Rymer and Kleinfeld) appear to have gotten the memo:
The Supreme Court has repeatedly told us to adhere to the high deferential standard of review of state court judgments that the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. ยง 2254(d), requires in federal habeas cases.  But my colleagues continue to treat this case as if it were on direct appeal to be reviewed de novo.  The majority will not yield to the shot across our bow fired by the Supreme Court when it granted Arizona's petition for certiorari and vacated and remanded our original en banc decision for reconsideration in light of Florida v. Powell-a case that reaffirms the Court's precedent under which the Arizona Court of Appeals' decision reasonably fits.  Subsequently, the Court fired a torpedo amidships in Harrington v. Richter.  But the majority steams defiantly ahead, far from the rest of the fleet.
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The majority's message to our state courts is clear: no matter how carefully you decide constitutional issues in criminal cases, no matter how well you justify your opinions with evidence of record, we will cast your work aside simply because we disagree.
(internal citations omitted)

Assistant Arizona Attorney General Kent Cattani says his office intends to file a petition for cert.  The AP has this story.


I am not sure that this post is all that fair. I agree that on the issue of voluntariness, the majority's opinion seems significantly off, but not completely beyond the ken, and I would bet that the majority's position would attract votes at SCOTUS. Kozinski's argument seems to be the best one, although it certainly can be criticized as insisting on perfection in an imperfect world--see also e.g., Uttecht v. Brown--but I think I agree with him.

AG Cattani has to appeal. This was a horrific crime. But I don't see this as an example of out-of-control judges.

Huh? The post gives the background, quotes the majority, and then quotes the dissent. What's unfair in that?

"The Ninth didn't budge in an en banc opinion by Judge Rawlinson, despite this term's consistent reminders to the court of the appropriate deference due under AEDPA:"

I am not sure it's at all clear that the majority, at least with respect to the result, is all that off, notwithstanding the colorful language in the dissent. Maybe I read too much into the post (and the title of the post), but it seems to me that the poster has a point of view about the propriety of the majority opinion.

I think my basic point is that this is by no means the same kind of off the reservation opinion that we've come to know and love.

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