GOP-named 9th Circuit judges decry death penalty ruling

A chorus of Republican-appointed judges on the 9th U.S. Circuit Court of Appeals decried on Wednesday a ruling that granted relief to a death penalty appellant, dissenting from a circuit-wide decision not to rehear the case.

The 12-judge dissent -- joined by six of President Donald Trump's appointees and one Democrat-nominated jurist, John B. Owens -- reflects a circuit whose conservative cohort has swelled with 10 recent Trump selections, making the outcome of en banc votes less predictable than during recent decades when the court's appointing-party balance tipped decidedly left.

Carlos T. Bea, whose senior status took effect last week with the confirmation of his replacement, Patrick Bumatay, authored the dissent and faulted the panel decision for, in Bea's view, misapplying standards within the Antiterrorism and Effective Death Penalty Act of 1996.

The law, Bea stressed, requires federal courts hearing challenges over state convictions to be "highly deferential," and give "state-court decisions ... the benefit of the doubt." The senior judge wrote that his panel colleagues lacked due consideration for Arizona's decision and acted as "a mere second state appellate court."

"Nothing in its review of the state ... court's decision included any deference whatsoever, particularly the high deference mandated by AEDPA," Bea wrote.

The original 9th Circuit ruling, rendered in May by a panel comprising Owens and Circuit Judges William A. Fletcher and Michelle T. Friedland, reversed the death penalty of a mentally-impaired Arizona petitioner whose counsel had provided constitutionally deficient assistance. Fletcher and Friedland concluded, with "reasonable probability," that adequate lawyering would have yielded a lesser sentence. Owens, noting the 1996 statute's exacting standard, voted against reversing the capital punishment. Kayer v. Ryan, 2019 DJDAR 3977 (9th Cir., May 13, 2019).

Bea's dissent -- joined by Circuit Judges Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Owens, Mark J. Bennett, Ryan D. Nelson, Bridget S. Bade, Daniel P. Collins, Kenneth K. Lee, and Daniel A. Bress -- called the panel's approach "radical" and "unwarranted under AEDPA," and warned that it would elicit swift Supreme Court reversal, as have previous circuit death penalty decisions the judge cited.

"Like clockwork, practically on a yearly basis since the millennium, we have forced the Supreme Court to correct our inability to apply the proper legal standards under the Antiterrorism and Effective Death Penalty Act," Bea wrote. Kayer v. Ryan, 2019 DJDAR 11770 (9th Cir., Dec. 18, 2019).

Fletcher and Friedland added their views in a separate writing Wednesday, noting they are "acutely aware of the deference required under AEDPA," but convinced the mentally-impaired appellant merited relief.

En banc rehearings convene when a majority of the 29-judge circuit so vote. Trump's 10 additions to the bench -- two coming last week, Bumatay and Lawrence VanDyke-- give the circuit 13 GOP-named judges.