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May 17, 2011

Ninth Circuit panel split on capital habeas appeal concerning IAC

Today in Leavitt v. Arave, No. 08-99002 (9th Cir. May 17, 2011) (available here), a panel of the Ninth Circuit split 2-1 when reviewing Idaho's appeal of the grant of habeas relief to a murder defendant sentenced to death.  The authors of the rulings in this case listed on page one of the 37-page opinion provide knowledgeable readers with an immediate notion of the outcome: "Opinion by Chief Judge Kozinski; Dissent by Judge Reinhardt."  Lest there is any uncertainty, here is the start of the majority opinion authored by Chief Judge Kozinski:

With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom.  Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood — just as his ex-wife had seen him do to “play[ ] with the female sexual organs of a deer.”  State v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989).  We decide whether Leavitt’s lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.

And here is the start of the dissent authored by Judge Reinhardt:

The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous.  That alone should have been a signal that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband.  I agree with the trial judge who sentenced Leavitt to death that “the fact that” such a person “would do this act leaves one[ ] asking why.”  Leavitt’s counsel, David Parmenter, failed to provide an answer to that question that could have saved his client’s life: Leavitt suffered from an organic brain disorder in the part of the brain responsible for regulating emotion and impulse control.  Despite the majority’s many tangents and alternative holdings, Leavitt’s habeas petition concerns one simple point: whether counsel should have made a motion for the MRI examination of his brain that the courtappointed neurologist had recommended. Had Parmenter done so, the examination would have revealed Leavitt’s organic neurological disorder — powerful mitigating evidence that could well have altered the sentencing decision of the trial court.  That alone is sufficient to resolve this case. Parmenter’s failure, despite the neurologist’s recommendation, to seek the examination that was necessary to establish the existence of Leavitt’s organic brain disorder unquestionably rendered his performance deficient; and that inexplicable conduct prejudiced his client under any reasonable standard.  Not surprisingly, the United States District Court for the District of Idaho so found, and we are asked simply to affirm the lower court.

May 17, 2011 at 05:59 PM | Permalink


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"The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous. That alone should have been a signal that there was something radically wrong with Leavitt . . . ."

This reasoning seems to explain much of Judge Reinhardt's decision-making process in capital cases. He seems to reason that because most people don't commit murders (particularly grisly ones), the fact that one has committed a murder itself proves that something is wrong enough with the person to constitute its own mitigating circumstance.

Posted by: guest | May 17, 2011 6:44:24 PM


good point. I don't think Reinhardt has ever found an attorney competent in a death case. I would have loved to see him in practice so I could pick it apart 20 years later with 20/20 hindsight.

Posted by: DaveP | May 17, 2011 7:04:59 PM

Well, at least it's nice to know that Stephen Reinhardt thinks some killings are exceptionally brutal. The dumbbell beating of a 19 yo woman isn't so bad.

He is an execrable creature, isn't he?

Posted by: federalist | May 17, 2011 7:32:47 PM

60 Minutes should interview him if he would agree to it. I would love to see the interviewer put him on the hot seat. Always ruling that lawyers are incompetent and all the while getting reversed continuously, usually by a unanimous SCOTUS. Hypocritical.

Posted by: DaveP | May 17, 2011 7:51:20 PM

DaveP --

The problem is that there isn't going to be any "hot seat." The interview would portray him, not as lawless or as America's most reversed appellate judge, but as the independent-minded maverick who sticks up for the underdog.

When Abu-Jamal gets pictured by the media as a "civil rights activist" (I'm not making that up) instead of an ice-cold cop killer, you pretty much have the story right there.

Posted by: Bill Otis | May 18, 2011 5:12:32 AM

Again, any MRI abnormality should get the defendant priority in getting the death penalty, since repair is unlikely. He is among the most dangerous and crazed of all killers in their collection.

Posted by: Supremacy Claus | May 18, 2011 5:48:21 AM

Bill Otis

I agree. Abu-Jamal has celebrity status. People in Europe think he is a political prisoner. It's incredible.

Wishful thinking on my part with Reinhardt. I would love to interview him.

Posted by: DaveP | May 18, 2011 6:36:45 AM

I also agree with the post because death penalty has to be paid off.

Posted by: Atlanta Injury Lawyer | May 18, 2011 7:51:03 AM

Both of these jurists are legal giants and both brilliant intellects. Proof of the value of an indepenident federal judiciary.

Posted by: Steve Prof | May 18, 2011 2:04:48 PM

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