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Circuit Scorecard -- Criminal

SCOTUSblog is out with their batch of statistics for the US Supreme Court term just ended.  This year, they have helpfully posted their spreadsheet of raw data so others can crunch the numbers in different ways.

In accordance with the theme of this blog, I selected out the cases where the "nature" of the case is criminal or habeas.  From this subset, I made my own circuit scorecard.

In the full set compiled by SCOTUSblog, including civil cases, the Ninth Circuit is doing better than in prior years.  In the criminal cases, though, the Ninth remains dismal.  For cases decided on the merits with an opinion, reversals of the circuits line up as follows:

CA1:  0/2 = 0%
CA3:  1/2 = 50%
CA4:  0/1 = 0%
CA6:  2/3 = 67%
CA7:  1/2 = 50%
CA8:  1/1 = 100%
CA9:  8/8 = 100%
CA11: 1/2 = 50%

There were no criminal cases this term from the Second, Fifth, Tenth, or D.C. Circuits.  One Ninth Circuit federal case was "affirmed by an equally divided court," which in legal effect is the same as if the Supreme Court had not taken up the case at all.

More important than reversal rate is the number of unanimous reversals.  When the Supreme Court is close to evenly divided, that indicates the question was close and reasonable judges could go either way.  When not a single one of the nine justices of diverse viewpoints thinks a decision was correct, that is an indication that the court below is seriously out of the mainstream.

Nine federal court of appeals decisions in criminal or habeas cases were reversed unanimously this term, and the Ninth racked up a stunning six of them, twice as many as all other circuits put together.  All but one are cases where the Ninth wrongly granted habeas corpus to a state prisoner.  For its state-prisoner habeas cases, the Ninth got a grand total of two votes to affirm in six cases, a vote total of 50-2 to reverse.

This is an utterly dismal record.  The Ninth is a clear and present danger to public safety and the rule of law.  Once more, with feeling, the Senate needs to carefully examine any nominees for this train wreck of a court to make sure that they will make it better on habeas, not worse.


To: God
Re: Where you put me

Thank you that it was in the Fourth Circuit, with no criminal reversals again this year.

Please take mercy on Kent and our readers out West.

I just responded to a defense motion that included the argument that the number of appellate reversals in death penalty cases in our jurisdiction is proof that the death penalty is being applied in an unconstitutionally arbitrary fashion.

Our jurisdiction is within the boundaries of the Ninth Circuit.

You can imagine what my response was.

Years back, pre-AEDPA, I did a study identifying issues of law in capital cases decided one way by the state court and the other by the Ninth and subsequently decided by the U.S. Supreme Court. Operationally defining the "right" answer as SCOTUS's, the state courts were right 12 times, and the Ninth was right once.

One of the 12 was Walton v. Arizona, on which SCOTUS subsequently changed its mind, so today we would have to say 11-2, but that is still a lopsided margin. Any argument that is based on a premise that the Ninth is right when it disagrees with a state court is like a mathematical derivation that begins, "Given 2+2=5..."

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