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December 11, 2006
Ninth Circuit reversed on button prejudice case
Over at SCOTUSblog here, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in Carey v. Musladin (background here). Here are details from Lyle's post:
The Supreme Court ruled Monday that a federal appeals court had no basis for overturning a state court ruling that allowed the family members of a murder victim to wear buttons with his picture during the trial. Six members of the Court said it remained an open question whether the conduct of spectators at a trial, as opposed to activities of the prosecution, could be so prejudicial as to deny a fair trial to the accused.
Justice Clarence Thomas wrote the main opinion in Carey v. Musladin (05-785), and had the full support of five other Justices. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.
After meetings I hope to have a chance to read and comment on this opinion (which appears to be the only major SCOTUS criminal law action today).
UPDATE: The short majority opinion in Carey v. Musladin (decision here) is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime & Consequences and Althouse.
December 11, 2006 at 10:14 AM | Permalink
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Tracked on Dec 11, 2006 5:35:35 PM
Comments
What a surprise, another lawless decision by the Ninth Circuit unanimously overturned.
Posted by: federalist | Dec 11, 2006 12:07:47 PM
What a surprise, another alarmist post by federalist. Evidently, the decision was a very narrow one on federal habeas law (AEDPA). That is hardly a "lawless" opinion by the 9th and could indicate some lawlessness in the AEDPA in relation to the traditional use of habeas.
"With three Justices unwilling to support Thomas' opinion, it appeared that that opinion had to be kept narrow in order to hold the votes of a sufficient number of Justices to maintain a majority."
The spirit of the 9th's ruling is still up for grabs, but the state "got off on a technicality."
Posted by: George | Dec 11, 2006 2:21:06 PM
Since AEDPA is an Act of Congress, it can only be "lawless" if it is unconstitutional. If Judge Reinhardt, et al. think that, they should say so forthrightly, instead of evading the statute and binding Supreme Court precedent, as they have been doing for over 10 years now.
Posted by: Kent Scheidegger | Dec 11, 2006 2:44:47 PM
Gee, George, what an incredibly disgusting display of spin. The Court's decision (which you must have not read yet) was a smackdown of the 9th Circuit's decision (which you must not have read either). It clearly held that the 9th Circuit got it wrong on the relevant issue. The state by no means "got off an a technicality".
Posted by: Clarence | Dec 11, 2006 2:53:04 PM
Mr. Scheidegger, any thought on what might be percolating in Irons v. Carey?
Others, federalist's comment was gratuitous, but not incorrect or alarmist.
The most interesting aspect of Musladin was probably the discussion among the Justices about how broadly Supreme Court opinions should be read for AEDPA purposes, which wasn't actually all that interesting. All 9 Justices seemed to agree that AEDPA's pretty clear in all respects necessary to decide this case.
Posted by: | Dec 11, 2006 3:21:22 PM
The comment to Mr. Scheidegger was a response to his statement that Judge Reinhardt should say so forthrightly if he believes that AEDPA is unconstitutional.
Posted by: | Dec 11, 2006 3:22:31 PM
AEDPA is a valid act of Congress, and many judges, particularly certain Ninth Circuit ones flout it. I don't know that there is another word, other than "lawless". Why should the states have to be subjected to the indignity of appearing before judges who are obviously biased. Does the world end if California has to retry Musladin--clearly not, but when judges flout the law, they invite the flouting of their rulings.
Posted by: federalist | Dec 11, 2006 3:33:20 PM
Re status of Irons v. Carey:
Beats the &*%#@$ outta me. They called for briefing. We briefed. That was a year and a half ago. On Oct. 27, 2005, they issued this order:
This case is referred to the Settlement Unit to explore a possible solution through mediation. Submission of this appl is vacated until 60 days from the date of this order. Vacateur may be ext by further order of this panel or the chief circuit mediator.
Nothing of substance since then.
Posted by: Kent Scheidegger | Dec 11, 2006 4:44:44 PM
Federalist really meant time to break up the 9th.
The SCOTUS does not "smackdown" the 9th, but only says they have not yet extended Williams and Flynn to spectators yet, and so that is not clearly established federal law yet, but many of them will seriously consider doing so and they give some good examples of how the 1st Amendment may not apply to spectators.
They are only saying they haven't decided that yet and it was wrong of the 9th to extend Williams and Flynn that far before they do. That is hardly unlawful. A reasonable and lawful person could reasonably make that extension, but SCOTUS says no. They also seem to imply they do not as yet have enough information to make the decision and there was not enough in the record to decide that.
The government has always had a vested interest in victims' rights and rightfully so. The government represents crime victims, after all. The government does this well for those who seek justice through the power of government or we would have more revenge killings, blood lust and tribal wars like in gangs, who prefer not to take advantage of government justice.
What is surprising in this case is that the victims who wore the buttons would likely be the ones who would most want a fair and impartial trial, untainted in any way. They would seem to want the justice the murder victim was denied, and they would seem to be the ones who would want it as pure as possible in contrast to the crime.
One of the arguments in Carey v. Musladin is that there isn't any state interest in the wearing of the buttons by spectators. That may be true, but did the prosecutor advise them on what to wear, or demeanor, or buttons? Did they seek or receive advice from The Office for Victims of Crime or any of it branches or subsidiaries on the state or federal level? Some go so far as to argue that victims' rights, the state, the prosecution and politics are inseparable. Under this argument, any expression of victims' rights in a courtroom could be understood as pro state and pro prosecution. I for one can never argue with Marc Klass' or Mark Lunsford's buttons when they wear them on TV. Who with any heart could? It takes a great deal of effort to think beyond the buttons.
Carey v. Musladin only means the 9th jumped the gun.
Posted by: George | Dec 11, 2006 5:58:33 PM
Au contraire George. Maybe the Ninth Circuit has guessed what the law ultimately will be, although I think it completely silly to give jurors the power of taking away someone's freedom or his life and yet thinking them so easily swayed by a simple button with a decedent's picture. But be that as it may, the Ninth Circuit had no business messing with the state's judgment here. Why, because the law said so. And last I checked, judges are supposed to follow the law, whether or not they like the particular result.
You can euphemize that as "jumping the gun" all you want, but it's lawlessness.
Personally, rather than breaking up the Ninth, I'd rather see some judges appointed to that court who would follow the law. It's time to end the moonbattery that results in numerous summary and unanimous reversals, as well as covering for judges who abuse their power (Manuel Real).
Reinhardt, Paez and Berzon and others are simply embarassments.
Posted by: federalist | Dec 11, 2006 6:13:11 PM
I think the proper description of today's majority opinion is somewhere in between the comments above. It certainly wasn't a smackdown of the idea that spectator action could unconstitutionally prejudice a jury. If anything, it puts the idea more decidedly in play than it was before, because at least three justices are concerned, and it would take only one more justice to grant cert on that issue on a direct appeal -- a circumstance under which today's opinion would have zero precedential value, since it turned on the AEDPA rules and not the constitution.
That said, AEDPA is not a "technicality" and the Ninth Circuit did far more than jump the gun. AEDPA is an Act of Congress setting forth the rules for federal court review of state convictions, and the "clearly established federal law" and "contrary to or unreasonable application" language is at the heart of deference and comity, not a technical part of the statute. As for the 9th Circuit, its holding was more than jumping the gun because it quite manifestly did exactly what AEDPA is supposed to forbid all federal courts other than the Supreme Court from doing -- develop a new rule of constitutional law on collateral attack. It might be "jumping the gun" if it were an incremental extension of a Supreme Court case, but this was a wholesale expansion. I'd have been surprised if even one justice had dissented from the judgment today.
In my opinion, Justice Kennedy's view of this case is the most correct one. He recognizes the validity of the defendant's interest in an intimidation-free courtroom, while recognizing that this is simply not the case in which the Court can address the matter in anything beyond dicta.
Posted by: Matthew | Dec 11, 2006 6:28:07 PM
Sorry, George, you're wrong again. There's a reason why I pointed out that you hadn't read either of the opinions. Now it appears that you've at least read the SCOTUS opinion, but you've failed once again to comprehend the main issue that was involved.
The 9th Circuit didn't jump the gun. It got the law wrong. It held that the situation here was "contrary to the Court's established rule of law" and in the process it virtually ignored AEDPA. It erred in doing so. The SCOTUS once again stepped in to correct an absurd characterization of current federal law. Whether the Court one day decides to make the situation involved in this case unconstitutional is irrelevant, nor will it somehow prove the 9th Circuit right if it does so. It has not done so, nor has any opinion of the Court suggested it. The 9th Circuit purposely ignored the law and it received a smackdown for its actions.
Oh, and one last comment on your ridiculous "jumped the gun" assertion. A very interesting sentence in the majority opinion suggests that the majority might be willing to distinguish past precedent from the issue of spectators. Only Stevens, Kennedy, and Souter made it seem like they wanted to go there. In other words, I wouldn't get your hopes just yet that the law in this area is going to go in the direction you desire.
Posted by: Clarence | Dec 11, 2006 6:30:21 PM
"It certainly wasn't a smackdown of the idea that spectator action could unconstitutionally prejudice a jury. "
I never said that it was. I thought my comment was clear, but I guess not. Today's SCOTUS decision was most certainly a smackdown of the 9th Circuit's majority opinion in the case. The 9th turned AEDPA into some bizarre alien creation which no one recognizes and tried to flip the bird at the law. The SCOTUS clearly said the 9th was wrong in doing so. That's what I meant by a smackdown. I made no mention in that comment of the really irrelevant issue of what the Court might one day hold with respect to the issue of spectators.
Posted by: Clarence | Dec 11, 2006 6:39:16 PM
Then we're in agreement, Clarence, as far as your most recent comment goes. My only qualification of what you've said pertains to your statement a couple comments ago that "[a] very interesting sentence in the majority opinion suggests that the majority might be willing to distinguish past precedent from the issue of spectators. Only Stevens, Kennedy, and Souter made it seem like they wanted to go there." If you're suggesting that today's opinion intimates any view whatsoever on how many members of the majority, if any, would make that distinction -- or how far they would take it -- I disagree. I suspect that at least Breyer and Ginsburg, without whom Thomas's opinion would not have had a majority, would be willing to entertain the extension. They, plus today's concurrers, make a majority of the Court, and thus I think you're a little too dismissive of George's position.
I assume the language you're referring to is: In contrast to state-sponsored courtroom practices, the effect on a defendant’s fair-trial rights of the spectatorconduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial. And although the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices.
That last sentence, in addition to being dicta insofar as it speaks to the future, really only serves to show how implausible the 9th Circuit's action was today. It doesn't preclude the members of today's majority from concluding that spectator practices are unconstitutionally prejudicial, only that the applicable law would not stem from Williams and Flynn.
I read the above language as stating the unremarkable principle that the Ninth Circuit tried to find "clearly established federal law" in an area in which there is NO federal law at all, and thus its holding was manifestly wrong.
Posted by: Matthew | Dec 11, 2006 7:27:27 PM
Comments discussing "federal law" should be narrowed to "Supreme Court holdings." So should the first sentence of Lyle's post at the AKINGUMPblog.
Posted by: | Dec 11, 2006 7:57:49 PM
Well, yes. Implicit in what I'm saying is the meaning of that term as construed in Williams v. Taylor.
Posted by: Matthew | Dec 11, 2006 8:00:38 PM
Of course, who can blame anyone for being confused when the New York Times runs a headline such as:
Buttons at Trial Didn’t Bias Jury, Justices Say
No, they didn't rule that, for reasons fully explicated by this comment thread.
Posted by: Matthew | Dec 11, 2006 10:55:08 PM
What I wrote was "could indicate some lawlessness in the AEDPA in relation to the traditional use of habeas.
A habeas appeal that used to be lawful can easily be unlawful now due to procedural and timely errors. We can argue all day if that is due to too many meritless appeals or not, but it is still much more difficult, if not impossible for some, to file lawful appeals though they were traditionally lawful. (see: The Great Unobtainable Writ: Indigent Pro Se Litigation After the Antiterrorism and Effective Death Penalty Act of 1996.)
Here is another example on a different issue:
People v. Mesa (Cal. Ct. App. - Nov. 14, 2006)
"While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a 'reasonable probability' of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. Opn. at pp. 8-12.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard will afford the essential protection. That is, when as here a defense counsel’s failure to object deprives defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the U.S. Constitution the conviction should be reversed unless the court can make a finding 'beyond a reasonable doubt' the error did not affect the outcome."
The buttons themselves are not the important issue though there is a good chance the wearers wear them to make a statement, possibly to the jury. That is for a later decision. The point here is that habeas is too restrictive and even those with solid constitutional grounds, as opposed to meritless claims that clog the courts, are suffering unconstitutional penalties (in the opinion of many) that in the past were not tolerated. We are lucky to have the 9th.
Posted by: George | Dec 11, 2006 11:05:54 PM
Bear in mind that the defendant has already had an appeal, and his claims have been found not to be "solid," in this case by the California Court of Appeal.
De novo review by a second court would make sense only if we had much greater confidence in the second court's ability to decide the case correctly than we have in the first court. Where the courts in question are the California Court of Appeal or Supreme Court, first, and the Ninth Circuit, second, it is just the opposite, IMHO. When the two disagree, the state courts are more likely to be right.
Posted by: Kent Scheidegger | Dec 12, 2006 12:57:58 AM
Kent Scheidegger, it is difficult to understand your blind faith in government. Our Framers were not so trustful and knew better. Or maybe your faith in is federalism, but why? Here is a "solid" and relatively recent example of federalism run rampant: THE LAW AND HUMAN STERILIZATION.
The Eugenics Record Office and The American Eugenics Society had a mere 1,200 members or so, yet look at all they accomplished, though they said, "This paper has been intended as a work of information rather than of propaganda..." Federalism at times is like a crowd of states with a low immune system against propaganda.
Let's say there is a modern version of The American Eugenics Society. Let's call it The F. Society. Instead of a scalpel, they would use Galton's statistics. They would start a State Legislative Society and craft laws inspired by the old eugenics laws until they pass constitutional test, just as Harry Laughlin crafted the Virgina law that resulted in Buck v. Bell. (To ensure it would pass constitutional muster, they had one of their own, Irving Whitehead, deliberately lose Carrie Buck's case while defending her before SCOTUS. Some might argue that proves she was feebleminded or at least too gullible, but I think it's proof you can't trust the state.)
Back to our fictitious F. Society. Once enough states passed and approved their agenda, SCOTUS, like in Buck, would be less likely to overturn them because they wouldn't be cruel and unusual. How can something so widespread across the states be cruel and unusual? So now, like The American Eugenics Society, The F. Society more or less controls the social agenda. What would elections matter to them? Presidents could come and go, and so what? The SCOTUS could change Justices now and then, and so what? As long as federalism rules, and they control federalism, they have, through their propaganda, the support of the people, and carefully orchestrated precedent through the courts.
Or as Dahlia Lithwick puts when discussing the same case we are: "Congress has told the courts to butt out, and this court is learning to do just that. No wonder Souter is having some sort of existential/constitutional crisis. Who wants to schlep all the way down from New Hampshire to hear a case you're not even allowed to decide?
From our laws, the Nazis adapted their eugenics laws that lead to the Holocaust. If only they had a Ninth Circuit, and if only we did.
Posted by: George | Dec 12, 2006 4:51:03 AM
George, you're either a 1L or you're nuts.
Posted by: Bill | Dec 12, 2006 10:15:52 AM
George, I do not have blind faith in government. The question is the relative degree of confidence in two courts. The argument for de novo review seems to be based on blind confidence in the federal court. Just because the Ninth Circuit says the California state court decision is wrong does not mean that it really is.
Posted by: Kent Scheidegger | Dec 12, 2006 11:36:11 AM
George: I don't get the linking between federalism and eugentics. I'm being serious here. What exactly are you saying? That the Federalist Society and many other conservative group's call for federalism would make federal law ineffective? Do you really think that it could ever go that far? Don't you think that the past eugentics movement was inspired as much by the "breeding" good stock" cultural thinking as by politics? Yes, we have genetics now, and there's a real possibility that we'll have genetic enginering soon. But I doubt that we are anywhere near discovering the genes of political thought. Perhaps you are elluding to something more more and I just missed it (very possible!), but I just don't get your gloom and doom picture.
Posted by: Steve | Dec 12, 2006 1:26:23 PM
Kent, isn't it _federal_ conlaw we're discussing? Finality aside, there's no real comity concerns when it comes to federal law - I've never understood that as a valid reason for AEDPA's constitutionality.
Posted by: anonpd | Dec 12, 2006 1:37:52 PM
Bill, that's a fairly weak post, so weak I can't even be offended by it.
Kent Scheidegger, the time to distrust is dependent on the relative power of each, not on how much more knowledgeable the local court may be regarding the case. Knowledge can be a dangerous thing. History tells us locals can be nuttier and more dangerous to the Bill of Rights than "Big Government," and federalist "experimentation" can run riot. Of course a fair and impartial trial judge will have the most direct knowledge and deliver the fairest ruling based on the facts, and local appellate courts would have the best understanding of state constitutional issues within the state, but it is the higher courts that serve as a check and balance under the broader concepts of the U.S. Constitution. A de novo review is an opportunity to do that.
It is not that they should have taken up Carey and decided the broader issue, and they indicted they did not have enough facts to make that decision anyway, it is that they were powerless to do so had they had the facts.
As Dahlia Lithwick wrote: "Makes you wonder why we have judicial review in the first place, huh?"
Posted by: George | Dec 12, 2006 1:57:21 PM
