Ninth Circuit: December 2008 Archives

Today the Ninth Circuit Court of Appeals, in an opinion authored by Justice Bybee, found a sentence of 28 years to life imprisonment, under California's three strikes law, for failure to update an annual sex offender registration to be cruel and unusual punishment under the Eighth Amendment.  The Circuit found that California's registration requirement creates a regulatory offense and the sentence imposed to be grossly disproportionate to the offense.  This is a must read opinion for anyone with a failure to register or failure to change address case in which the State is seeking habitual criminal adjudication.  The opinion is Gonzalez v. Duncan.

In Chambers v. McDaniel, the Ninth Circuit reverses a conviction for first degree murder based upon the Kazlyn instruction on first degree murder.  Roger Chambers was convicted of murdering Henry Chacon after an altercation between the two men.  Chacon was stabbed 17 times.  The opinion addresses federal exhaustion at length, including the issue of whether an original petition for extraordinary relief was sufficient to exhaust the issue in state court.  The Circuit finds that because the Nevada Supreme Court did not dismiss the original petition on procedural grounds, but instead stated that it had "consider the petition on file" and concluded that its intervention "by way of extraordinary relief" was not warranted at this time, because the Court stated in a footnoted that it had considered all of the documents filed and received in the matter, and because the Court "concluded that the relief requested is not warranted," that its ruling was a ruling on the merits and therefore the issue was exhausted.xp serial num

As to the merits, the Circuit noted that it decided the same jury instruction in Polk v. Sandoval, and found that like Polk, Chambers' due process rights were violated by the instruction on premeditation.  The Circuit found that the evidence on deliberation was particularly weak and that "if anything, the evidence presented at trial seems to weigh in favor of second-degree murder committed while in the throes of a heated argument."xp serial num

Congrats to Linda Bell of the Federal Public Defender's Office (not for long, as she'll take the bench as a judge in January - this is a nice swan song).xp serial num

In Sechrest v. Ignacio, the Ninth Circuit Court of Appeals reverses death sentences based upon a 1983 conviction for two murder convictions in Washoe County.  The 41 page opinion addresses procedural default issues, law of the case, an alleged Miranda violation, and several penalty phase issues.  The Court holds that the prosecutor's repeated misstatements regarding the likelihood of Sechrest's release from prison by parole were he to be sentenced to life without the possibility of parole violated his due process right to a fair trial, and that the violation had a substantial and injurious effect on the jury's sentencing decision.  The prosecutor had made four statements indicating that Board of Pardon Commissioners could -- and likely would -- release Sechrest if the jury returned a verdict of less than death.  The Court found the misconduct to be prejudicial after noting that "a jury sitting in a capital case must be given a clear choice between the death penalty and a life sentence."  xp serial num

The Court also found that while the prosecutor's misconduct alone justified its holding, testimony by a psychiatrist exacerbated the prejudicial effect of the prosecutor's remarks.  Defense counsel had retained a psychiatrist to evaluate Sechrest.  Although defense counsel decided not to call the witness, counsel gave a copy of the expert's report to the State.  The State then called the psychiatrist as a witness and elicited the fact that he had examined Sechrest at defense counsel's request.  The psychiatrist informed the jury of Sechrest's criminal history, stated that he had a callous disregard for human life, and was an incurable sociopath who, if released, would pose a danger to others, particularly to little girls.  The Ninth Circuit rejected the findings by the state district court and federal district court that the psychiatrist's testimony was cumulative and instead noted the significance of testimony presented by a mental health expert.xp serial num

The Court next found that defense counsel was ineffective for three reasons.  First, defense counsel should not have allowed the prosecution to review the psychiatrist's confidential report on Sechrest's mental health.  Counsel had decided not to call the psychiatrist as a witness, but inexplicably disclosed the confidential and privileged report to the prosecution.  Without this report the prosecution would not have had access to this privileged information.  "Defense counsel had absolutely no obligation to disclose [the] confidential report to the prosecution."  Second, defense counsel should not have stipulated to the prosecutor calling the psychiatrist as a witness for the prosecution.  Further, the jury was told that the psychiatrist was hired by the defense.  The Court rejected defense counsel's explanation at an evidentiary hearing, in which he stated that he did not object because he believed the psychiatrist would provide helpful information about Sechrest's troubled background, as this was not a sound strategic decision.  The Court found the explanation to be implausible as defense counsel did not call the witness and did not pursue or argue any mitigating factors related to Sechrest's troubled background.  Third, defense counsel's preparation for Dr. Gerow's testimony fell far below an objective standard of reasonableness.  Defense counsel did not speak with the psychiatrist after agreeing to let him testify for the prosecution.  The lack of preparation was evidence from counsel's lackluster performance at trial.xp serial num

Congratulations on the victory to Tiffany Murphy and Michael Pescetta of the Federal Public Defender's Office.xp serial num

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