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December 9, 2009

Huge en banc ruling from Ninth Circuit reversing death sentence for ineffective assistance

I can only imaging what Kent Scheidegger at Crime & Consequences will think about today's en banc ruling from the Ninth Circuit in Pinholster v. Ayers, No. 03-99003 (9th Cir. Dec. 9, 2009) (available here). Here is how the majority opinion starts:

Scott Lynn Pinholster (Pinholster) was sentenced to death after a jury convicted him of double murder with a knife in the course of a home robbery and burglary.  After exhausting his state remedies, Pinholster sought a writ of habeas corpus in federal district court in which he alleged, among other claims, ineffective assistance of counsel at both the guilt and penalty phases of his trial.  Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, in its final ruling, the district court upheld Pinholster’s conviction, but granted habeas relief on his death sentence because the court found that trial counsel’s deficient performance at the penalty phase of the trial unconstitutionally prejudiced Pinholster’s defense.

A three-judge panel of this court affirmed the district court’s guilt phase determination but reversed its grant of habeas relief on the penalty phase.  Pinholster v. Ayers (Pinholster II), 525 F.3d 742 (9th Cir. 2008).  Sitting en banc, we affirm the district court.  Although the denial of Pinholster’s guilt phase ineffective assistance claim was appropriate, his penalty phase ineffective assistance claim warrants habeas relief even when considered under AEDPA’s deferential standards.

The majority then takes 50+ pages to explain its ruling.  In response, Chief Judge Kozinski writes nearly 75 pages of a dissent explaining why he thinks the majority is wrong.  Here is how that opinion concludes:

The trial in this case took place over a quarter century ago.  Pinholster’s lawyers are both dead.  Justice Mosk, who wrote the California Supreme Court’s unanimous opinion in Pinholster’s direct appeal and participated in both of his habeas petitions, is also dead. Pinholster’s two victims are long dead and forgotten; whatever hopes and aspirations they may have had were cut short because they had the misfortune of getting in the way of Pinholster’s greed and anger.

Meanwhile, prison has been good to Pinholster.  He sits in his cell reading Machiavelli, Voltaire “and all the philosophers”, drawing pictures to sell over the internet.  He enjoys the gravitas, authority and mentoring opportunities that come with being an elder in his prison gang, and has surgery performed on his knees at taxpayer expense.  He still stabs people whenever he can, without passion or regret; “it was just business,” he explains.  His conscience doesn’t trouble him about the fact that he took the lives of two fellow human beings; he has never expressed the least remorse for his killings.  The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out.

I have no doubt that my colleagues sincerely believe they are following the Supreme Court’s directions. Admittedly, the Court has been less than clear in this area. See, e.g., Rompilla, 545 U.S. at 377 (majority), 395 (Kennedy, J., dissenting); Wiggins, 539 U.S. at 514 (majority), 538 (Scalia, J., dissenting); Terry Williams, 529 U.S. at 367 (majority), 416-17 (Rehnquist, J., dissenting).  But I believe it’s been clear enough, and Pinholster’s death sentence must be reinstated. If we do not do it ourselves, it will surely be done for us.

December 9, 2009 at 04:37 PM | Permalink


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Two points

1) The author, M Smith, is a Bush II appointee who also authored a decision refusing immunity to torture memo authors.

2) Bybee didn't dissent.

Posted by: . | Dec 9, 2009 4:46:23 PM

There are a lot of AEDPA procedural issues--I would not be surprised to see SCOTUS take this one up.
Kozinski clearly has the better of the argument. FN 15 of Kozinski's dissent is priceless, as is his "habeas by sandbagging" comment.

Posted by: federalist | Dec 9, 2009 5:02:59 PM

May God be praised for the Ninth Circuit. Without it, the Supreme Court would be severely underemployed.

Posted by: Bill Otis | Dec 9, 2009 5:17:45 PM

I don't have the stomach to read 150 pages' worth of opinions, but I object to Kozinski's tug at the heartstrings. If the defendant received ineffective assistance, he deserves relief, not because he's a good guy, but because that is what the law says. If he received adequate assistance, then the case should be over, not because he's a bad guy, but because that is what the law says.

Posted by: Marc Shepherd | Dec 9, 2009 5:21:22 PM

Marc Shepherd --

I agree that sentiment has no place in an appellate court's legal analysis, but Kozinski can be forgiven, somewhat, for being tempted to fight fire with fire. Quite a few of his Court's pro-defendant opinions go on and on with tearful stories about the defendant's supposedly woe-begotten life. After having lived with this for the twenty-odd years Kozinski's had to put up with Betty Fletcher, Stevie Reinhardt and the rest of the crew, I can see where he's coming from, even if I wish he'd show more restraint.

Posted by: Bill Otis | Dec 9, 2009 5:50:03 PM

Kozinski was hardly distorting the law with the "tug at the heartstrings"--what he was doing was to show that garbage by the Ninth Circuit has real life consequences that are heart-rending. This scum has gotten to live for 25 years at taxpayer expense, and the Ninth Circuit twists the law to perpetuate this outrage.

Posted by: federalist | Dec 9, 2009 6:03:41 PM

Good article!

Posted by: Minneapolis DUI lawer | Dec 9, 2009 6:50:50 PM

Did inadequate defense result in a false conviction? Did it result in a false death sentence, knowing everything known about Pinholster?If the outcome would be the same, inadequate or adequate the defense, this decision is pure lawyer make work. Rent seeking is the same as armed robbery, morally and physically. If you refuse to pay your taxes, a man with a gun will show up and help you pay. That implies the judges deserve to be arrested, tried, removed, and sent to prison.

Kosinski comes close to spotting the argument of the Supremacy. Smart cookie. LWOP immunizes all subsequent crime, and is an absolute license to kill. It is better than that of James Bond. There will be no second guessing of any extra-judicial execution by civil service of Brit twits, as James Bond has to endure sometimes.

Posted by: Supremacy Claus | Dec 9, 2009 7:03:55 PM

I am surprised that there were only 3 dissents. I expected Smith and Bybee to affirm the panel decision. Hopefully another PC opinion from SCOTUS sometime next year.

Posted by: DaveP | Dec 9, 2009 8:09:51 PM

Judge Kozinski that was a damn good dissent. When Justice Kennedy visited the 9th Circus earlier this year, he should have brought some of the judges a copy of AEDPA to read.

Posted by: DaveP | Dec 9, 2009 8:28:04 PM

well, i disagree. I hve actually read the entire opinion and dissent, have you? I think the majority has it right. Remember, as Scalia said, "like the rains from heaven, constituional rights fall on the guilty as well as the innocent." The man, monsterous acts and all, got shafted in the penalty phase. Lots of solid mitigation evidence was not presented and could well haave moved at least one juror to vote for life. That's all it takes under the law. So. Stop whining. I predict a big "cert. dnied."

Posted by: anon 15 | Dec 9, 2009 9:53:44 PM

First commenter--As someone who skims a lot of 9th Circuit opinions, I think it's safe to say M Smith is rapidly moving left, if he was ever on the right in the first place. (He was appointed because he's former Oregon Sen. Gordon Smith's brother, not for being a FedSoc all star.) He's routinely on the left side of panel decisions with a conservative dissenter, and I don't remember the last time I've seen him play the role of conservative dissenter himself.

Posted by: Jay | Dec 10, 2009 12:08:15 AM

There are evidently two systems of law in this country, a liberal system and a conservative system, and neither respects the other if we believe the pundits. There is probably some mathematical equation that can statistically guess what this disrespect does to the overall respect for the law.

Posted by: George | Dec 10, 2009 12:41:21 PM

Anon15 writes, "Lots of solid mitigation evidence was not presented and could well haave moved at least one juror to vote for life. That's all it takes under the law."

Nope. Not in California. We have the sensible rule that the jury must be unanimous one way or the other. If that one juror holds out to the bitter end, the result is a hung jury and a retrial of the penalty phase. There are a good many murderers on the Cal. death row who got a death verdict in such penalty phase retrials.

As for Doug's wonderings in the first sentence of the post, I haven't had time to read the opinions in their entirety yet, so I will hold my fire until I have.

Posted by: Kent Scheidegger | Dec 10, 2009 12:43:23 PM

Milan Smith is a former board member of the Criminal Justice Legal Foundation, Kent Scheidegger's organization, and a conservative Republican, and Bybee is no wide eyed liberal either. I'm afraid Smith had it right when he noted:

our dissenting colleague demonstrates yet again why he would be such a talented writer of fiction. He concocts a fantastical trial strategy for Pinholster’s attorneys despite their own admissions that they were simply unprepared. . . To give attorneys the benefit of the doubt is one thing, but to fabricate an excuse that the attorneys themselves could not conjure up is another.

Kozinski's opinion is a conservative primal scream, not an honest attempt to deal with the facts presented to the court. Whatever the outcome, a little more judging, and a little less ideological chest thumping would be welcome.

Posted by: capitalhabeasatty | Dec 10, 2009 12:46:18 PM

"Kozinski's opinion is a conservative primal scream, not an honest attempt to deal with the facts presented to the court."

The majority opinion has serious issues, not the least of which is the bolstering of the record on habeas. Additionally, the idea that capital habeas attorneys' admissions should be treated with anything but extreme skepticism is nuts.

Posted by: federalist | Dec 10, 2009 2:05:51 PM

We could argue all day about this case. Anyway, it seems that the lower courts recently have had an incredibly difficult time deciding these ineffective counsel cases. Three different courts of appeal have been unanimously reversed in the past few weeks by SCOTUS. Also, the 9th Circuit still seems ignorant of AEDPA and the numerous reversals by SCOTUS. It is just amazing that they can't get it right.

Posted by: DaveP | Dec 10, 2009 2:21:58 PM

Every now and then a 9th Circuit majority comes out with something so bad that it deserves to be embarrassed in a way that few have the skill and work ethic to pull off. Hats off to Chief Judge Kozinski.

Posted by: anonymous | Dec 10, 2009 2:22:17 PM

Usually, the en banc 9th Circuit is really tight on the votes. 6-5, 8-6,etc. I guess all of us assumed Smith was going to be conservative because he was appointed by Bush 2. Again, I am surprised that Bybee did not join the dissent.

Posted by: DaveP | Dec 10, 2009 2:39:15 PM

anonymous --

Unfortunately, the Ninth Circuit has spent decades proving that it is incapable of embarrassment.

Posted by: Bill Otis | Dec 10, 2009 6:32:32 PM

DaveP --

"[T]he 9th Circuit still seems ignorant of AEDPA and the numerous reversals by SCOTUS. It is just amazing that they can't get it right."

They're not trying to get it right.

Posted by: Bill Otis | Dec 10, 2009 6:36:30 PM

I wonder if anyone can get it right. SCOTUS also chided the Fla Sup Court on Porter. 4 courts who screwed up recently on ineffective assistance claims.
It has become a real comedy watching the 6th and 9th Circuits over the past few years. If I was reversed 9-0 in my business over and over again, I would have to seriously consider retiring. There is nothing better than a death penalty case that gets the judges bickering with one another. Whats the saying, "We are not a country of laws, but a country of men"?

Posted by: DaveP | Dec 10, 2009 7:12:36 PM

Dave --

The reason they don't retire is that they couldn't get hired anywhere and would go broke.

OK, that was a joke.

They actually don't care whether the S.Ct. reverses them. In business, when your boss thinks you've screwed it up time and again, you're out door. But these characters know they can't get the axe, so they don't give a hoot. Indeed, not only do they not get the axe, the worst of them get invited to ABA receptions and munch on finger sandwiches all afternoon while one fawning lawyer after the next comes up to tell them what great humanitarians they are.

Posted by: Bill Otis | Dec 10, 2009 7:33:24 PM

Thanks Bill. I must find an article where Kozinski said he does not lose sleep over the reversals by SCOTUS. I thought my criminal law attorney friend told me that Alex was moving left the past few years after always being in dissent with Kennedy in the early 80's and after Kennedy moved up. I always enjoy your posts.

Posted by: DaveP | Dec 10, 2009 7:40:33 PM

Ahhh, I understand now. Only the views of conservative lawyers are trustworthy. The views of a prosecutor, or a member of the Federalist Society, or an attorney working for an organization funded by the Sarah Scaife or John Olin Foundation are inherently trustworthy, but those of anyone on the defense side "should be treated with . . . extreme skepticism." Good thing your biases aren't showing, Federalist.

Posted by: capitalhabeasatty | Dec 10, 2009 8:02:24 PM

Kent, the point is that if even one juror had a reasonable doubt, the death penalty could not have been imposed. "A mistrial is a vactory for the defense." Plea bargaining could well have resulted in an lwop dispostiion. If not, another penalty phase trial could end differently.

Posted by: anon 15 | Dec 11, 2009 11:17:40 AM

We all come to this with biases -- conservatives no less than liberals.

I guess what I find most distressing about Judge Kozinki's dissent is this: in the Ninth Circuit, as in a number of circuits, there are judges who are virtually guaranteed wins for capital habeas petitioners (e.g., Reinhardt), judges who are virtually guaranteed losses for capital habeas petitioners (e.g., Kleinfeld), and a number of judges on the left (e.g. Wardlaw), or the right (e.g. Bybee) who are much more persuadable by either side, depending on the merits of the case.

Until recently, Judge Kozinski was persuadable, conservative, but open to ruling for Petitioners on procedural and substantive issues alike. Its hard to imagine that the same judge who wrote the Pinholster dissent wrote the majority opinion in Wallace v. Stewart, 184 F.3d 1112 (9th Cir.1999).

Kozinski's dissent in Pinholster is notable, and in my view distressing, as much or more for its strident tone, than for the substance of what he says. Where does a federal judge get off summarizing facts that aren't relevant to his decision as his conclusion to a case in which life and death are on the line?

After going on and on about post-conviction facts that he can't properly consider in making his decision (including the fact that Pinholster has had "surgery performed on his knees at taxpayer expense"), Kozinski proclaims: "The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out."

What is he, a judge bound by laws, or a tribune of the people? As jazzed as conservative readers may be by such red meat, is that what they really want from federal judges? What about the vaunted concerns I hear on the right about judicial activism? Is that just all talk?

Posted by: capitalhabeasatty | Dec 11, 2009 12:04:43 PM

capital, the "admissions" of defense attorneys have to be treated with skepticism for the reasons well-explained in Kozinski's dissent. That you would choose to launch into a diatribe about whose views are acceptable says a lot more about your intellectual rigor than me.

As for Kozinski's flourishes, certainly they weren't as bad as the whining over Kevin Cooper. But in any event, what he's doing is highlighting the absurd length of time it is taking to impose the death penalty in California. Sorry if that offends your precious sensibilities.

Posted by: federalist | Dec 11, 2009 2:03:47 PM

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