The 9th Circuit ducks its judicial obligations in ruling

On Jan. 15, the 9th U.S. Circuit Court of Appeals ordered that convicted murderer Ezzard Ellis either be released or be given a new trial. In doing so, it reversed a decision of the district court and effectively nullified the decisions of the California courts in this matter. Remarkably, the 9th Circuit reached this result without finding any error by the district court or any violation of any rule of law demonstrably affecting the trial of Ellis' case.

This is the kind of 9th Circuit decision that would very likely be reversed by the U.S. Supreme Court, if anyone with standing asked. Unfortunately, no one who can ask is going to, so we have a published order of dubious validity that is arguably binding on every federal district judge and three-judge appellate panel in the Far West and no means of having it reviewed.

As summarized by Judge Consuelo Callahan in her dissent, "In 1989, Ezzard Ellis, and his co-defendant, Nathan Macon, senselessly shot and robbed two men who were sitting in their car at a McDonald's drive-through window. One victim died and the other was seriously wounded." Ellis was represented at trial by attorney S. Donald Ames. Although Ellis has criticized Ames' performance, no court has found any ineffectiveness rising to the level or having the effect needed to reverse the judgment under Supreme Court precedent.

The claim that produced last month's order is simply that Ames, who died over 20 years ago and cannot defend himself, was a bigot. Despite all the hyperventilating in briefs and opinions about "extreme racism," the evidence submitted does not indicate that Ames was a Klansman or a Nazi; he was merely an Archie Bunker-type bigot of the kind that was regrettably common among Americans of his generation. These attitudes were said to betray a duty of loyalty to the client, despite the absence of any indication that he ever expressed them to the client, that they ever interfered with attorney-client communication or cooperation, or that they had any effect at all on the effectiveness of representation.

The California attorney general successfully defended the judgment against this claim before the California courts, the federal district court, and a three-judge panel of the 9th Circuit. Then, on petition for rehearing en banc, the attorney general abruptly did an about-face, decided that this novel claim had merit, and waived all of the defenses that were within his capacity to waive.

Reversals of the government's position late in the review process are not common, but they are not unheard of. I have never before, however, seen the chief law enforcement officer of a jurisdiction consent to the reversal of a conviction for a heinous crime based only on a novel constitutional theory unsupported by precedent. As doubtful as the attorney general's performance of his duties are in this case, though, the performance of the court is much worse. The law is clear, and this manner of resolving the case is clearly wrong.

The U.S. Supreme Court has left no doubt as to the correct manner of proceeding in a case such as this. As far back as 1942, in Young v. United States, 315 U.S. 258, the high court said, "[t]he considered judgment of law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed."

In other words, it is improper and a violation of judicial duty to reverse based on the government's confession of error alone. Two methods of dealing with this situation are established by long practice. The appellate court can send the case back to the lower court to reconsider in view of the government's confession. Alternatively, the appellate court can appoint an amicus curiae to argue in favor of affirming the judgment below and proceed to decide the question on the merits.

Initially, the 9th Circuit followed the second course. It appointed my organization as the amicus, and I briefed and argued the merits of the substantive Sixth Amendment question. During oral argument, it was apparent that the court was struggling with that question and the standard that Congress has set for reviewing a state court judgments, but it was also struggling with the question of whether there remained a constitutionally required "case or controversy" after the government's change of position. There certainly is. That issue has been resolved in landmark cases such as the legislative veto case, INS v. Chadha, 462 U.S. 919 (1983), and the gay marriage case, United States v. Windsor, 570 U.S. 744 (2013).

Then we receive this two paragraph order resolving none of the issues and not disclaiming a case or controversy but citing only the government's concession. It is evident from the concurring opinions that the court was unable to reach a majority decision on a rationale for granting relief despite the high barrier set by Congress for overturning state judgments, a barrier that the attorney general cannot waive. On a question of law resolved by the state court on the merits, a federal habeas corpus court cannot grant relief unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court ...."

Three judges joined a concurring opinion dancing around that high standard. They would assume that an obvious misstatement in the superior court's decision, likely immaterial in this case, was the basis of subsequent denials of the claim by the California Court of Appeal and Supreme Court. This misapplication of the rule that a subsequent summary denial is rebuttably presumed to be on the same basis as a prior explained denial would be a ripe target for reversal in the U.S. Supreme Court.

Five judges joined a concurring opinion with a different end-run around the congressional standard by claiming that Ellis had never presented this claim to the state courts, and therefore the state courts had never ruled on the merits. This feat of prestidigitation is achieved by saying that when a petitioner invokes a different branch of the law of ineffective assistance he is making a different claim, even though the nature of his complaint and the supporting facts are identical. This rationale, also, would be ripe for summary reversal by the high court.

There is just one problem. The usual path to Supreme Court review is jurisdictionally limited to petitions filed by parties. A mere amicus curiae, even one invited by the court, is not a party. The attorney general can and should petition the high court for review, but given that virtue signaling is more important than justice in the current California Department of Justice, he is unlikely to do so.

The last remaining possibility is that the 9th Circuit itself could certify the question to the Supreme Court. It could request instruction on the question that it was unable to answer, making it unable to fulfill its "judicial obligations." That is not likely either. 