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USCA9 Summarily Reversed on AEDPA, Yet Again

"My client did not help those guys commit the robberies, and besides that he only helped because they forced him."

In Joshua Frost's trial for robbery, his lawyer wasn't that blatant, but he did want to argue that Frost was not an accomplice and alternatively qualified for the defense of duress.  The trial judge would not let him argue that, based on a Washington Supreme Court opinion saying that a defendant must admit the elements before asserting a duress defense.  The Washington Court of Appeals affirmed.  The Washington Supreme Court clarified that its precedent was not that strict and the argument should have been allowed.*  However, a majority of that court concluded that this type of error is subject to "harmless error" review, and based on its review of the evidence there was no effect on the outcome of the trial.

On federal habeas corpus, the magistrate judge, the district judge, and a majority of the initial 3-judge court of appeals panel agreed that this type of error is one of the great many subject to harmless error review, not one of the select few "structural" errors reversible without such consideration.

The Ninth Circuit granted rehearing en banc, and a bare majority (6-5) found that the state court's decision that this error is not structural was an unreasonable application of clearly established Federal law.  Finding state court decisions "unreasonable" when the Ninth merely disagrees with them on debatable points is something that court has been reversed for by the Supreme Court time and time and time again.  They never learn.  Today we chalk up yet one more in Glebe v. Frost, No. 14-95 (per curiam).  As in White v. Woodall, decided last term, the federal appeals court stretched existing Supreme Court precedent into new territory, and reasonable judges can disagree as to whether it should be extended there. There is no dissent.
When the Antiterrorism and Effective Death Penalty Act was going through the Senate, Senator Jon Kyl of Arizona predicted that the deference standard would not be observed in practice as strictly as Congress intended it and not achieve the intended result.  He was certainly correct as far as the Ninth Circuit goes.  Senator Kyl's alternative was to give the decisions of state courts the same degree of respect on federal habeas that the decisions of the local court system for the District of Columbia receive.  His amendment did not pass, but maybe it is time to reconsider it.  Certainly something needs to be done.  Repeated reversals of this rogue court by the Supreme Court are not having the needed effect.  And, as Judge Reinhardt said, "They can't reverse them all."

* Whether the Washington Supreme Court actually corrected a misinterpretation of its precedent by the lower state courts or actually changed the law of that state is debatable, but that is not for the federal courts to decide.


All the events in this case took place in my lovely hometown of Burien, WA - I consumed many a meal at the Taco Time in question and Ronnie's Market was always a bit lax on the carding of us youngsters.

Sidney Thomas eats another per curiam reversal. What's up with these 'rat judges?

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