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USCA9 Finally Reining In Its Rogue Panels?

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As we have noted many times on this blog, the United States Court of Appeals for the Ninth Circuit has a truly dismal record of reversal in the United States Supreme Court, especially in capital cases.  It is not just, or even primarily, the oft-cited "reversal rate," the ratio of cases reversed over the total taken up by the high court.  It is also the number taken up, even considering the size of the circuit, and the number reversed summarily, unanimously, or both.  When the Supreme Court thinks a decision is so obviously wrong as to not need argument or when not a single member of the diverse nine-member court thinks the court of appeals was right, that is a rebuke.  When it happens frequently, it indicates a real problem.

A big part of the real problem has been the recurrent failure of the Ninth Circuit to reconsider and correct errors in favor of the murderer by its three-judge panels.  Federal courts of appeals generally hear cases in three-judge panels, and cases are occasionally reheard by the full court (or, in the Ninth Circuit, an 11-judge panel), which may be done to resolve a split of opinion on a point of law between panels, settle a particularly important question, or to correct a particularly out-of-bounds decision.  The criteria for "rehearing en banc," as this procedure is known, are very similar to the criteria the Supreme Court uses in deciding whether to take a case up.

Yesterday, the Ninth granted rehearing en banc in the Arizona capital case of Detrich v. Ryan, No. 08-99001. 
The issues in the case follow the familiar scenario.  Detrich committed a heinous, callous, and horrible crime.  Now he claims his lawyer didn't do a good enough job of presenting bad childhood evidence and dubious psychological evidence.  The state judge (the original trial judge and sole sentencer) considers it and decides it would have made no difference in the decision.  The federal district judge agrees.

On appeal in 2010, Detrich got a unanimous reversal from a panel of Judge Pregerson, Paez, and McKeown.  The Supreme Court, after it decided Cullen v. Pinholster, sent the case back to reconsider in light of that case.

On reconsideration, Judges Paez and Pregerson stuck to their original decision despite Pinholster, but now Judge McKeown dissented.

The majority weaseled their way around §2254(d) and Pinholster by nitpicking the state judge's description of the defense shrink report (see dissent, p. 4610) and then declaring it to be an unreasonable finding of fact under §2254(d)(2).  Freed from the shackles of AEDPA deference, they go on to find a reasonable probability of a different result with the aid of additional evidence presented to the federal court, never presented to the state court.  The thought process displayed in the opinion appears to be one of looking for a way to reach a predetermined result of reversal.

Hopefully, the Ninth will reverse this decision and others like it, so we will not have to go to the Supreme Court so often, and the Ninth can polish up its very badly tarnished reputation.

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