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Judge Pregerson Gets In One Last Murder Case Reversal

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There were few judges in the federal courts more consistently pro-criminal than the late Harry Pregerson.  Nominated for the Ninth Circuit by President Carter, Judge Pregerson was particularly noteworthy for being asked point-blank in his confirmation hearing whether he would vote for his own opinion about the outcome of a case or a contrary result required by the law, answering that he would vote his own opinion, and being confirmed anyway.  Give him points for candor, at least, both in that answer and remaining true to it until this year.

Today, on the very last day of the year, a divided three-judge panel of the Ninth Circuit overturned the conviction in a California capital case, with Judge Pregerson casting the deciding vote.  Judges Reinhardt and Pregerson voted to grant the writ of habeas corpus, reversing District Judge Ronald Lew and effectively reversing the California Supreme Court.  Judge Jacqueline Nguyen dissented.  The four federal judges to review this case, therefore, divided evenly, yet the decision is to overturn the judgment of the state courts.

But wait.  Judge Pregerson died November 25.  Doesn't that matter?  Apparently not.  "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete," the opinion says.
Here is the opening of Judge Nguyen's dissent (emphasis added):

In January 1981, Francis Hernandez brutally raped, sodomized, strangled to death, and mutilated Edna Bristol, throwing her naked body out of his van near a middle school in Long Beach, California. Five days later, and in a strikingly similar manner, Hernandez raped and killed Kathy Ryan, throwing her naked body on the lawn of a high school in the same city. After his arrest, Hernandez gave a comprehensive, graphic, and disturbing confession, walking the police through the details of his gruesome crimes and, importantly, his thoughts, anger, and awareness of his actions as he committed them. His admissions, along with substantial physical evidence connecting him to the crimes, amply supported the jury's guilty verdicts.

Yet despite the strength of the evidence, the majority now vacates Hernandez's first degree murder convictions on the ground that Hernandez suffered prejudice due to trial counsel's deficient performance. I strongly disagree. Even if the jury had considered the omitted evidence of Hernandez's mental condition, there is no reasonable possibility of a different outcome. It's not even a close call. The evidence that Hernandez had specific intent to rape and kill, either of which could have independently supported the verdicts, was so overwhelming that no rational juror would have believed otherwise. I dissent.
"Reasonable probability of a different outcome" is the relevant standard for an ineffective assistance claim established by Supreme Court precedent.  Judge Reinhardt's opinion recasts the standard as "whether there is a reasonable probability--that is, even less than a fifty-fifty chance--that at least one juror would have declined to convict Hernandez of first degree murder if his counsel had presented a diminished capacity defense based on mental impairment."  One juror?  Is a hung jury a "different outcome" within the meaning of the Supreme Court's Strickland standard as applied to the guilt phase?  Judge Reinhardt does not cite any Supreme Court opinion saying that for the very good reason that there isn't any.  The high court has said that with regard to the penalty phase in cases from single-juror-veto states, but that is quite a different matter.

That alone is a good enough reason to rehear this case en banc.

11 Comments

Sounds like a perfect opportunity for an en banc hearing and reversal.

I meant to say, grant en banc hearing which vacated the panel opinion and affirm the district court.

See Buck v. Davis, 137 S. Ct. 759, 776 (2017) (Strickland prejudice satisfied if "at least one juror would have harbored a reasonable doubt" about defendant's guilt).


Nope, anonymous commenter, Buck does not say that. I note that you ended the quote at "doubt" and then finished the sentence in your own words "about defendant's guilt." But that is not what the opinion says, and it is not a paraphrase of what the opinion says.

In Buck, the challenged testimony came in at the penalty phase in a Texas capital case. Texas has the ill-advised single-juror-veto rule in its capital penalty trial so that a single juror holding out against a death sentence does not result in a retrial, as it does in the guilt phase in all states and the penalty phase in states with better laws.

That is why the original post says "Strickland standard as applied to the guilt phase."

Correction: Buck was penalty phase, and the quoted language above referred to whether "at least one juror would have harbored a reasonable doubt about whether Buck was likely to be violent in the future."

I appreciate your comment for pointing out to me that the original post did not make the importance of that distinction clear, and I have edited the post accordingly.

Just when you think the courts could not get more lawless, this occurs. When Pregerson died, his Article III power died with him. His prior participation in the case became irrelevant. The panel needed a third judge to issue the judgment. Thus, the court order, issued by the way to a sovereign state, should be void ab initio. And Reinhardt should be hooted off the bench in disgrace.

If we had a mature legal culture, where lawyers could criticize judges with no possibility of reprisal, such actions by a court would receive the harsh criticism they deserve. This case should be an embarrassment to the Ninth Circuit and federal courts in general. That it was done in the service of a brutal killer is a cruel joke on the victims' families.

And if the Chief Judge of the Ninth signed off on it, that judge should be gone as well.

It seems odd to me that your main gripe is with Reinhardt's characterization of the prejudice standard. (I recognize you put Nguyen's different point--that even Reinhardt's formulation of the prejudice standard can't be satisfied--in bold, but you immediately turn to the standard itself.) Is it really so crazy to conclude that a hung jury and a conviction are two different results? You point out that there's no SCOTUS opinion that says they are different, under Strickland, but is there a SCOTUS opinion that says they aren't? Also, if you think there's a reasonable probability that one juror wouldn't have been convinced that the prosecution carried its burden, wouldn't that undermine your confidence in the outcome?

"[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland v. Washington, 466 U.S. 668, 696 (1984).

A hung jury does not reach a decision. It fails to reach a decision, and the decision must then be made by a second jury.

I have reread my post and am unable to find the language that says or implies that the decision is "crazy." I think it is wrong. I think the Ninth should take the case en banc to decide the point, or if they don't then the Supreme Court should take it up. That is quite different.

The error in applying the law to the facts is a miscarriage of justice, but it is not a strong argument for rehearing en banc or certiorari, at least not by itself. The dubious statement of the legal standard is a better point for that move.

I read your paragraph about the standard to suggest that Reinhardt was very much wrong to conclude what he did about the "one juror" thing. In response, I'm suggesting his characterization is at least reasonable, and more reasonable than your paragraph implies. That's why I began that sentence with "is it really so crazy." I was being somewhat casual and imprecise.

My point is really just that this is not one of those situations where Reinhart is improperly ignoring the fact that no clearly established SCOTUS law exists on the point (since not an AEDPA case). I think his characterization of the standard is reasonable enough and the lack of SCOTUS law on the point is of no particular moment (because there's none saying otherwise either). That said, good point, re: the use of word "decision."

To the extent I'm just generally defending Reinhardt here, I'd also note that his characterization of the standard had already been done by the 9th: see Browning v. Baker (2017) 875 F.3d 444, 466; Weeden v. Johnson (2017) 854 F.3d 1063, 1071. He was just characterizing the current state of the law on the point.

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