The Reason Behind the 9th Circuit's High Reversal Record

FIRST IN A TWO-PART SERIES

In its 2010-2011 term, the U.S. Supreme Court has set another record in reversing the 9th U.S. Circuit Court of Appeals. Additional 9th Circuit cases remain on the Supreme Court docket in 2011, also likely candidates for reversal in the next term, but the current record will probably equal the 2009-2010 figures. During that term, the justices reversed the 9th Circuit 20 out of 21 cases.

The reversal record during the last decade is substantially similar, and several Supreme Court decisions are not written in the conventional 5-4 split among justices. The Supreme Court frequently reverses the 9th Circuit unanimously, and in some cases unauthored, noted only as per curium opinions. U.S. v. Gonzalez, 2011 WL 2518818. And the number of cases reversed does not include obscure or narrow rulings on cases of little interest except to the parties. Supreme Court reversal of 9th Circuit cases repeatedly consists of state court criminal trials and convictions concluded after jury verdicts, confirmation by the trial judge, affirmed by state Supreme Courts on appeal, and appeals from U.S. District Court denial of petitions for habeas corpus.

The principle reason for Supreme Court reversal of 9th Circuit cases is its evasion of the Anti-Terrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C 2254 (d) (1) (2) enacted by Congress in 1996 to reign in federal appellate courts reviewing state court convictions and sentences on habeas corpus. The statute provides federal jurisdiction to grant habeas corpus relief of a state court decision adjudicated on the merits only if it "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceedings."

Congressional intent is clear: In habeas corpus proceedings, a federal court must comply with the twin requirements of AEDPA clauses by applying a standard of "reasonableness" in its decision. The Supreme Court has interpreted this statutory language by requiring federal courts to respect state court judgments incorrectly decided, as distinct from unreasonably decided. In addition, federal courts cannot review state court convictions de novo, and must defer to state courts despite disagreement with the result. Harrington v. Richter, 131 S.Ct. 770 (2011); Horel v. Valdovinos, 131 S.Ct. 1042 (2011).

During its current term, the Supreme Court continued to reverse the 9th Circuit numerous times for non-compliance with AEDPA on the issue of habeas corpus, and simultaneously widening the scope of statutory application. In Cullen v. Pinholster, 131 S.Ct. 1388 (2011), a conviction in state court for murder committed in 1982, the 9th Circuit allowed petitioner to present evidence in federal court previously undisclosed in his prior habeas proceedings in state court. The Supreme Court chastised the 9th Circuit for this extraordinary procedure and disallowed any further habeas corpus review to evade "congressional intent to channel state prisoners's habeas claims first to the state courts."

A 9th Circuit panel had approved a similar procedure in Detrich v. Ryan, 619 F.3d 1039 (9th Cir. 2010) by allowing the U.S. District Court to consider evidence never presented to the state court. As the Supreme Court notes, to allow this 9th Circuit practice would convert state court trials and appellate review into a "warm up" for federal courts. The Supreme Court, citing Pinholster, reversed. Ryan v. Detrich, 131 S.Ct. 2449 (2011).

Avoiding the stated purpose of AEDPA, and ignoring Supreme Court jurisprudence, the 9th Circuit during the last decade has reversed almost every death penalty case on habeas corpus review of state courts within its federal jurisdiction. Equally relevant, the vast majority of these cases are not reversed for contentions of "factual innocence," but on grounds the lawyer who represented the defendant did so "ineffectively."

The source of the claim of "ineffective counsel" arises from the 1984 case of Strickland v Washington, 466 U.S. 668 (1984). The Supreme Court held that federal courts on habeas corpus must presume defense counsel effectively represented their clients, and a petitioner must also establish prejudice to his case. Ineffective counsel, if established by the evidence, warranted reversal of the conviction. The Supreme Court in Strickland reminded federal courts of the easy temptation to second guess counsel, or engage in hindsight, and reminded judges to examine the entire record in determining whether a lawyer failed to represent the petitioner to the extent the conduct undermined a fair trial.

Strickland became the cornerstone for 9th Circuit reversals of state court convictions. Ignoring AEDPA, citing useful snippets from Strickland, improperly reviewing habeas corpus petitions de novo, and dismissing deference to state courts, the 9th Circuit rarely found any lawyer represented a client "effectively" in a death penalty case. In the current Supreme Court term, the justices in Harrington v. Richter, 131 S.Ct. 770 (2011) reminded the 9th Circuit to review Strickland under "double deference" - first, apply AEDPA with deference, and then apply Strickland under a doubly deferential standard. The test in reviewing performance of counsel is not legal strategy, said the Supreme Court, but whether legal errors were so serious the right to counsel guaranteed by the Sixth Amendment had been jeopardized.

Reading the record of state court trials reflects the 9th Circuit repeatedly criticizing counsel's courtroom strategy in cases written by appellate judges who did not interview the petitioner, saw no witnesses, heard no testimony, and were unaware of the consequences of admitting evidence for the petitioner subject to damaging rebuttal. Whether an attorney performed according to the 'prevailing professional norms' is the test, not whether counsel deviated from best practices or common custom. Premo v. Moore, 131 S.Ct. 733 (2011).

Scott Pinholster was convicted in 1982; Joshua Richter in 1994; Joseph Moore pled guilty in 1995. And these cases are not exceptions. Not only wrongly decided, the chances of retrial decades later are remote.