The reason behind the 9th Circuit's high reversal rate

The 9th Circuit has invoked habeas corpus to overrule state Supreme Court cases on a variety of grounds other than ineffective counsel including weighing the evidence, a function obviously the province of the jury. The U.S. Supreme Court has reversed and remanded Patrick v. Smith, 131 S.Ct.1134 (2010) twice based on grounds asserted by the 9th Circuit that "no rational jury could find the defendant [Smith] guilty." The 9th Circuit has rewritten the case a third time, with the same result as its first opinion. Smith v. Mitchell, 624 F.3d 15 (9th Cir. 2010).

In McDaniel v. Brown, 130 S.Ct. 665 (2010) the 9th Circuit had granted a writ of habeas corpus in a state court case, agreeing with the defense version of the evidence at trial in a decision apparently adopting defense counsel's closing argument that the insufficiency of the evidence did not warrant a conviction. Reversing a case on grounds the defense version of the evidence was more credible than the prosecution is extraordinary, the 9th Circuit not only ignored AEDPA but affirmed a U.S. District Court ruling allowing the petitioner, again, to produce conflicting DNA evidence in a hearing conducted after the trial had concluded. Unsurprisingly, the Supreme Court reversed.

In its quest for error, the 9th Circuit also scrutinizes the records of jury selection to determine whether the prosecutor impermissibly excused a minority juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986) a Supreme Court case prohibiting prosecutors from excusing jurors peremptorily on grounds of race. Ninth Circuit panels have dismissed the ruling of trial judges denying a defense motion asserting prosecution bias, ignored the state court favorable review of voir dire, and unilaterally disagreed over whether a neutral reason explained prosecution exercise of a peremptory challenge on racial grounds. The 9th Circuit reads a written record, unfamiliar with any of the jurors, their demeanor, their voice, conflicting answers to questions, the nature of the case or the intuition of trial lawyers. In Rice v. Collins, 546 U.S. 333 (2006) the Supreme Court reminded the 9th Circuit of the superior insight possessed by the trial judge compared to a reading of the cold record on appeal.

In most cases the 9th Circuit scours the entire record on voir dire to discover some hint of prosecution bias. In contrast, but with the same goal, the panel in Felkner v. Jackson, 131 S.Ct 1305 (2011) wrote a three paragraph unpublished decision, unaccompanied by any explanation, rejecting the prosecutor's rationale for excusing two African American jurors. On review by the Supreme Court the justices reversed, commenting the unpublished opinion "inexplicable and unexplained."

The Supreme Court has not confined its reversals of the 9th Circuit solely to habeas corpus decisions reviewing criminal trials in state courts. In 2008, the California Supreme Court began easing parole conditions administratively applied by the Board of Prison Teams. In re Lawrence, 44 Cal.4th 1181 (2008). Under prevailing parole practices, the Board had focused heavily on the facts of the underlying offense, considered the nature of the crime, the extent of complicity, the absence of motivation, and the use of brutality and violence. The governor, under his constitutional authority to review parole decisions, relied on the same issues.

The California Supreme Court in Lawrence held the nature of the crime committed should not constitute the principle reason for granting or denying parole. The Board should consider whether "some evidence" existed to establish the applicant for parole constituted a "present danger" to the public, an amorphous and subjective test resulting in a torrent of inconsistent California Court of Appeals decisions.

After the Lawrence decision, the 9th Circuit, again invoking its habeas corpus jurisdiction, immediately began overruling state court parole decisions, and imposed its own view on whether the Board should grant parole to an applicant. Pirtle v. California Board of Prison Terms, 611 F.3d 1015 (9th Cir. 2010). But seven months after the Pirtle decision, the Supreme Court decided Swarthout v. Cooke, 131 S.Ct. 859 (2011) and five other decisions, substantially removing jurisdiction from the 9th Circuit to hear parole applications. Horel v. Valdovinos, 2011 WL 197628. The Supreme Court then vacated the 9th Circuit earlier decision in Cate v. Pirtle. 2011 WL 2297791 (U.S.). The justices administered a stinging reproach to the 9th Circuit, ordering no further federal interference in California state court decisions on parole. The Supreme Court held deciding constitutionally adequate procedures in the California parole system "is no part of the Ninth Circuit's business."

The current Supreme Court term also produced a case departing from its normal jurisdictional role in qualified immunity cases. If a court reviews evidence at trial and concludes a constitutional violation occurred, but a public official is entitled to qualified immunity, there is no reason to rule whether any legal error occurred warranting reversal. Pearson v. Callahan, 555 U.S. 223 (2009).

Subsequent to Pearson, the 9th Circuit held that the Fourth Amendment requires police to obtain a search warrant before interviewing a student in school who had alleged a sexual violation, but no liability attached on grounds the officers were entitled to qualified immunity. Green v. Camreta, 588 F.3d 1011 (9th Cir. 2009). The justices, stunned at oral argument to understand the Fourth Amendment basis for this decision, realized if it refused to decide the case already resolved in favor of the officers by qualified immunity, the principle announced by the 9th Circuit requiring a search warrant would stand. Carving an exception to its general rule in avoiding constitutional issues unless necessary, the Supreme Court vacated the entire case, despite the officers having prevailed on immunity, in order to avoid the underlying 9th Circuit rationale to become precedent in this case mandating a search warrant. Camreta v. Greene, 131 S.Ct. 2020 (2011).

Not all 9th Circuit judges have agreed with the decisions cited above. Dissents have been frequent, critical, and in some cases, scorching. Reversal by the Supreme Court confirms the validity of their dissents. These criminal cases do not garner the publicity of the Wal-Mart Stores Inc. v. Dukes decision, 2011 WL 2437013 (U.S.) or Chamber of Commerce of the U.S.A. v. Whiting decision, 131 S.Ct. 1968 (2011) - two other 9th Circuit cases reversed by the Supreme Court. But either individually or collectively, the impact of the 9th Circuit decisions on the judicial system undermines the comity of the courts, erodes federalism, and delays the finality of closure.