The basic dynamic of Ninth Circuit “liberal lion” Stephen Reinhardt overturning a death sentence in a habeas case – and then the U.S. Supreme Court reversing Reinhardt — happens so often that it normally would not merit comment. But here’s a slight twist: Today the Supreme Court reversed Reinhardt for the third time in the same case, that of Fernando Belmontes, Jr.
As I understand the history, Judge Reinhardt first authored an opinion overturning Belmontes’ death sentence in Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003). The Supreme Court granted, vacated, and remanded in light of Brown v. Payton, 544 U.S. 133 (2005). To be fair, that one wasn’t really a direct reversal of Reinhardt: He wasn’t on the Ninth Circuit decision reversed in Brown, so the first reversal was only to account for the Supreme Court’s clarification of the law in Brown. On remand, Judge Reinhardt wrote a second opinion overturning Belmontes’ death sentence in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005). The Supreme Court took that case and reversed in Ayers v. Belmontes, 549 U.S. 7 (2006). Judge Reinhardt then wrote a third opinion overturning Belmontes’ death sentence in Belmontes v. Ayers, 529 .23d 834 (9th Cir. 2008), which the Supreme Court reversed 9–0 in a per curiam decision today in Wong v. Belmontes.
Mark Field says:
Entirely off topic, but is anyone else having problems getting the VC page to load? I get this post and about half of Prof. Adler’s on judicial nominations, but that’s it. And it’s been that way all morning.
Quote
November 16, 2009, 11:30 amkrs says:
What’s the over-under on whether Reinhardt will try again? Perhaps he’s too busy this year running California’s prison system.
Quote
November 16, 2009, 11:33 amSenatorX says:
Entirely off topic, but is anyone else having problems getting the VC page to load? I get this post and about half of Prof. Adler’s on judicial nominations, but that’s it. And it’s been that way all morning.
Yep.
Quote
November 16, 2009, 11:35 amgeokstr says:
Mark, once again you and I agree 100% on something. That’s two out of what — several hundred thousand?
Something is definitely wrong with the VC page.
Quote
November 16, 2009, 11:42 amNickM says:
It’s a conspiracy.
Nick
Quote
November 16, 2009, 11:47 amBT says:
Me Too!!!
Quote
November 16, 2009, 11:47 amShelbyC says:
Wait, how do you know you’re getting about half of Prof. Adler’s post?
Quote
November 16, 2009, 11:52 amML says:
Prof Kerr,
I think your last cite is incorrect. It should be: Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2008)
Quote
November 16, 2009, 11:53 amAppalled says:
Me, three. Also, there seemed to be an outage yesterday. I tried unsuccessfully to access the site several times.
Quote
November 16, 2009, 11:54 amPatHMV says:
Note to law reviewers... when you find yourself reflexively cite-checking even blog posts, it’s time to step away from the F.3ds and go have a drink.
Quote
November 16, 2009, 11:55 amDave N says:
Same problem here. Wordpress has some advantages (such as editing comments), but the old platform did seem more stable.
On the merits of the thread, I still have a standing bet that no one can point to a single death penalty case where Judge Reinhardt was part of a panel that upheld a death sentence.
He is almost as bad in regular habeas corpus cases. That’s one reason I actually framed the denial of a Certificate of Appealability when the 2 judge panel consisted of Judges Reinhardt and Pregerson.
Quote
November 16, 2009, 11:56 amMark Field says:
Elaborate statistical analysis of his previous posts. :)
Quote
November 16, 2009, 12:03 pmDjDiverDan says:
Ditto on the page loading problems. As to the Belmontes case, what I found particularly enlightening about the Supreme Court’s per curiam opinion was how much it highlighted the inconsistency between the 9th Circuit panel’s opinions the second and third time around. In the second opinion by Reinhardt, he characterized the mitigation testimony offered by Belmontes counsel during the penalty phase of his trial as “substantial” — of course, that was when Reinhardt was intent on throwing out the death penalty based on improper jury instructions on the weight to be given to mitigation evidence. When the Supreme Court nixed that plan in Ayers v. Belmontes, Reinhardt did a 180 degree turn, calling Defense counsel’s performance deficient for failing to introduce anything more than “cursory” mitigation evidence. So, Judge Reinhardt, which was it — “substantial” mitigation evidence, or was it merely “cursory” ? Or does your answer depend entirely upon whichever characterization supports whatever argument you need to reach your desired result? Does anybody else think that it’s reasonable to conclude that Reinhardt is the exact opposite of an unbiased judge?
Quote
November 16, 2009, 12:13 pmkrs says:
Dave N, Judge Reinhardt himself is on the record as saying that you win your bet, at least as of February 2004:
The above quote is from How Appealing’s “20 Questions for the Appellate Judge.” The question is in italics, and the rest is the first 2 paragraphs of his response.
Quote
November 16, 2009, 12:14 pmcjwynes says:
The best part of the PC opinion is when they’re blasting the 9th circuit for saying the victim didn’t “needlessly suffer”, when in fact she was bashed in the head and face 20 times with a dumbell bar and left to die, but she did not die immediately and managed to survive until the cops arrived. It’s like the 9th circuit lives in a whole other universe from the one in which reasonable people, and our entire Supreme Court, live.
Quote
November 16, 2009, 12:30 pmKent Scheidegger says:
The best part of the opinion is on page 7 of the slip op., where they note how the Ninth’s characterization of defense counsel’s case in mitigation miraculously transformed from “substantial” in a previous round (where IAC wasn’t needed to reverse) to “cursory” in the present round (where it was).
Quote
November 16, 2009, 12:32 pmNunzio says:
Kozinski said of Reinhardt that he wouldn’t even uphold a death-sentence conviction of someone like McVeigh who had a $5 million defense.
I suppose Reinhardt would have no problem with district judges in the 9th refusing to follow his majority opinions on the grounds they disagreed with them.
Quote
November 16, 2009, 12:45 pmyoyo says:
Good point, Kent, and the evidence also went from “substantial” to “insubstantial.”
Quote
November 16, 2009, 12:47 pmDangerMouse says:
While that rebuke on page 7 is nice evidence of obvious judicial bias, don’t forget about page 12–13:
We agree with the state court’s characterization of the murder, and simply cannot comprehend the assertion by the Court of Appeals that this case did not involve “needless suffering.” The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpseshowed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” id., at 839, which “plainly evidenced a desperate struggle for life at [Belmontes’] hands,” Belmontes, 755 P. 2d, at 354. Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. Record 3. The juryalso heard that this savage murder was committed solelyto prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.
I just don’t understand why libs love to coddle murderers. It just boggles my mind. Apparently, it also boggles the mind of the Supreme Court. When they heck are they going to impeach some of those jerks on the 9th circuit anyway?
Quote
November 16, 2009, 12:59 pmADF Alliance Alert » Reinhardt Reversed for Third Time in Same Case says:
[...] Kerr writes at the Volokh Conspiracy: “The basic dynamic of Ninth Circuit ‘liberal lion’ Stephen Reinhardt overturning [...]
loki13 says:
Perhaps they can catch them all. :)
Quote
November 16, 2009, 1:43 pmDave N says:
loki13 wins the thread.
Quote
November 16, 2009, 1:48 pmworried about the conspiracy says:
First they came for talk radio, then for Fox, and now the VC . . .
Quote
November 16, 2009, 1:58 pmegd says:
FIFY.
Quote
November 16, 2009, 2:04 pmmls says:
why does the name of the warden keep changing? Is it because they move the prisoner, or is there that much turnover in the prison system?
Quote
November 16, 2009, 2:06 pmEjote says:
San Quentin (the relevant California facility for death cases) had four wardens between Woodford (2004) and Ayers (2006). Ayers, an experienced warden nominated by Governor Wilson to restore stability, retired after Governor Davis withdrew his nomination. Wong, another experienced warden, is acting until Governor Schwarzenegger selects a permanent replacement.
Quote
November 16, 2009, 2:23 pmmls says:
Ejote– thanks. I wonder how many more wardens Belmontes will be able to outlast?
Quote
November 16, 2009, 2:56 pmDave N says:
My favorite law school professor once commented that the easiest way to achieve immortality is to become the warden of a maximum security prison or the director of a state prison system. Calderon, Strickland, Schriro, et al. would likely agree.
(Though it is ironic that when I googled “Strickland v. Washington,” two of the first five listings asserted that Strickland was the criminal when he was actually the Superintendent of the Florida State Prison)
I, of course, enjoy irony. Since the Attorney General is sometimes a named party in habeas corpus litigation, I would have loved to have seen this case captioned Brown v. Belmontes given Jerry Brown’s past personal opposition to capital punishment.
On the other hand, Brown might not have been as amused. And for the DAGs filing the cert. petition, he is still the boss.
Quote
November 16, 2009, 3:07 pmbailey says:
Does “liberal lion” translate to “fundamentally dishonest”? It sounds like that is exactly what this jurist is and why the glib talking point about the law pretty much being what any given judge says it is can be so frightening.
Quote
November 16, 2009, 3:14 pmgeokstr says:
There go you typical leftists again, making more unsupported assertions, like we’re supposed to just trust you when you say, like, “Trust us”, or something.
Let’s have the cites, the sites, the links, the formulas, the population and sample sizes, the unadjusted raw data, the assumptions, and the peer reviewed articles in absolutely totally objective venues (and prove beyond a shadow of a doubt the objective part while you’re at it, too, so nothing counts that’s from ABC, NBC, CBS, MSNBC, CNN, PBS, NPR, NYT, LAT, WaPo, HuffPo, DU, KOS, Media Matters, FighttheSmears, Time, Newspeak, or any other source except Fox, the WSJ, or the Limbaugh radio show).
:-)
Quote
November 16, 2009, 3:26 pmBT says:
You mean I can’t listen to G. Gordon Liddy?
Quote
November 16, 2009, 3:40 pmegd says:
The first few pages of results on Google for “Liberal Lion” point to Senator Ted Kennedy. So feel free to make your own judgment.
Also, if the judge is steadfastly refusing to apply the law in these cases, at what point does Congress step up and impeach him? Is that a possibility with the current Congress? Could Congress separate the policy issue of judges upholding the law from the policy issue of the death penalty?
Quote
November 16, 2009, 3:41 pmrichard says:
if the judge is steadfastly refusing to apply the law in these cases, at what point does Congress step up and impeach him? Is that a possibility with the current Congress?
I don’t support Reinhardt’s pretty obvious refusal to follow the law but if that is grounds for impeachment, then there are going to be quite a few openings on the federal bench. In the USDC for the Central District of California, we have had numerous judges other than Reinhardt who could care less about following established law (Real and Hauk come to mind), most on the conservative side, and there have been no attempts to impeach them. In fact, the ONLY impeachment of federal judges in the history of the country have been for commission of crimes, not ideological offenses.
Quote
November 16, 2009, 4:03 pmgeokstr says:
Hey, you can listen to anyone you want (I recently read that several hundreds of people (not a typo) even continue to watch or read the antique media that I listed, but can’t find the link about their viewership/circulation right now, so that figure may be wildly overstated), you just can’t use it to “prove” MarkField’s unsupported assertion above.
Quote
November 16, 2009, 4:05 pmMark Field says:
Trust but verify? Sounds vaguely familiar...
Quote
November 16, 2009, 4:06 pmBen Sheffner says:
The Ninth Circuit routinely removes Judge Real from cases after reversing him. Does anyone know if the Supreme Court has the authority to do that to circuit court judges?
Quote
November 16, 2009, 4:18 pmShelbyC says:
Well, since judges get to interpret the law, it’s pretty tought to determine that a judge is refusing to follow it, unless he says “I find that the says X but I’m going to rule Y anyway.” Hell, even if a judge says, “binding precedent case says X, but I find that the law doen’t require me to follow binding precedent” I think it would be tough to determine that he isn’t following the law.
Quote
November 16, 2009, 4:23 pmMark Field says:
Just to nitpick a little history here, Justice Chase was impeached for ideological offenses. There was another early impeachment of a judge who probably was insane and was not, IIRC, accused of any criminal offense.
Quote
November 16, 2009, 4:40 pmhugh says:
Too bad the murder victim did not have any right to appeal. Maybe she would have lucked out and gotten an appeals bench where one of the panel refuses to grant authority for the termination of a human life.
Quote
November 16, 2009, 4:41 pmcjwynes says:
They’ll never come out and say that. That’s why the “death is different” jurisprudence is so complex and irrational; the abolitionist judges keep creating novel approaches in particular cases to strike down death sentences. They should either do like Blackmun did and just say outright they won’t vote to uphold any of them, or else realize that the penalty is not their moral responsibility and they commit no moral crime by failing to strike it down. That responsibility lies with the legislators who choose to allow the penalty, the prosecutors who choose to seek the penalty, and the juries who choose to impose it. (And, if you’re in favor of capital punishment, you would say responsibility also lies with the perp who committed the crime.)
Quote
November 16, 2009, 4:44 pmMark Field says:
A little more historical perspective, this one based on personal experience. I don’t think it’s possible to convey just how bad the CA CD was in the mid to late 70s. Maybe I can say it this way: Judge Real was not even close to being one of the worst judges at that time; there were 2 or 3 who were FAR worse.
Quote
November 16, 2009, 4:45 pmDangerMouse says:
Well, since judges get to interpret the law, it’s pretty tought to determine that a judge is refusing to follow it....
A good test is when he changes his characterization of the same set of facts to suit his different legal argument at the time. An advocate is supposed to characterize the facts to suit their argument. An impartial judge is not. But when you go from calling the same evidence “substantial” to “cursory,” it’s pretty clear that you’re not acting as a judge anymore but as an advocate. As such, it seems obvious that removal is the appropriate remedy.
Honestly, I think this is a classic case of bias and deserves appropriate punishment. On what other issues has he had his thumb on the scale? How many other parties to the court has he screwed over because he decided to be an advocate? How many other victims of murder wouldn’t receive justice because this lib decided that he’d call something “substantial” one day and “cursory” the next day.
Quote
November 16, 2009, 4:46 pmPerseus says:
More evidence for legal realism.
Quote
November 16, 2009, 5:54 pmEd Unneland says:
Wouldn’t the authority to prohibit a particular judge or judges from rehearing a case derive from the general supervisory authority that the Supreme Court has has over lower federal courts? I guess it’s so unusual, and would be such an egregious bench slap, that the Supreme Court is reluctant to do it. I think the Chief Justice wanted unanimity, and might not have been able to get it if they removed Reinhardt from the rehearing on remand.
Quote
November 16, 2009, 6:28 pmrichard says:
Just to nitpick a little history here, Justice Chase was impeached for ideological offenses. There was another early impeachment of a judge who probably was insane and was not, IIRC, accused of any criminal offense.
You’re right about Chase. I meant to say that there have been no impeachment of District Court or Court of Appeal judges for ideological offenses
Quote
November 16, 2009, 6:41 pmrichard says:
A little more historical perspective, this one based on personal experience. I don’t think it’s possible to convey just how bad the CA CD was in the mid to late 70s. Maybe I can say it this way: Judge Real was not even close to being one of the worst judges at that time; there were 2 or 3 who were FAR worse.
I second tha. As someone who tried cases before Judge Hauk and Judge Lydick and others, I can verify that there were judges worse than Real, as hard as that is to believe.
Quote
November 16, 2009, 6:44 pmrichard says:
Honestly, I think this is a classic case of bias and deserves appropriate punishment. On what other issues has he had his thumb on the scale? How many other parties to the court has he screwed over because he decided to be an advocate?
A lot fewer than Judge Real, an unprincipled conservative. If you want to punish Reinhardt, then at least be even handed and call for the punishment of all the judges who have their thumbs on the scale.
Quote
November 16, 2009, 6:47 pmMark Field says:
Why was God so angry with you?
Quote
November 16, 2009, 7:10 pmD.R.M. says:
Customarily, judges only get impeached for criminal acts. But the standard in the Constitution for judges is that “they shall hold their Offices during good Behaviour” — which the 1913 Webster’s defines as “while (or so long as) one conducts one’s self with integrity and fidelity”.
Were I Roberts, I’d specifically call out the behavior of Reinhardt in a letter to Congress and advise that he is not behaving in a manner consistent with the Constitutional standard for judges, given his overt nonsense on the latest 9–0 reversal.
And if there are other district judges consistently failing to demonstrate “good behavior” but not managing to draw the attention of the Supreme Court, the Chief Judges for those circuits should similarly write Congress about them.
Quote
November 16, 2009, 7:34 pmJames N. Gibson says:
I think the significant point in this is that SCOTUS was 9–0 for reversing this. That means they had Breyer, Ginsburg, Soutamayor and Stevens. Reinhardt usually has been able to get the backing of the liberal members of the court. In the first reversal he got the backing of Souter, Ginsburg and Stevens. In the second try it was a split court with Stevens, Souter, Ginsburg and Breyer in dissent. This time Reinhardt didn’t get anyone to dissent. Is it possible that the retirement of Souter has thrown off the morale compass of the court. Or is it that now that we have a Latina on the Court its possible to condemn a hispanic to death without any PC problems.
Quote
November 16, 2009, 11:43 pmJoe says:
Justice Chase was impeached for ideological offenses
Hmm. This might be the motivation, but the articles of impeachment cite actual procedural problems.
James N. Gibson points to something. The first two times, R. got the support of three and four justices. For those who say he kept on ignoring the law, four justices disagree with you.
As to the last time, Stevens didn’t want them to take the case but agreed as to the specific matter at hand.
Quote
November 17, 2009, 9:12 amTuesday Round-up | SCOTUSblog says:
[...] on the defendant to show that the result might have been different with competent counsel. The Volokh Conspiracy notes that this decision marks the third time the Supreme Court has overruled Ninth Circuit Judge [...]
Mark Field says:
The motive was disguised, but thinly. A summary is here.
Quote
November 17, 2009, 10:32 amMatt says:
The Supreme Court’s reversal here deserves more attention by mainstream media. The language of the Supreme Court’s reversal is stark and harsh. “[We] . . . simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering.’”
The Court even chided the 9th Cir. for its sophistry. “More evidence, the Court of Appeals now concluded, would have made a difference; in particular, more evidence to “humanize” Belmontes, as that court put it no fewer than 11 times in its opinion.”
Quote
November 17, 2009, 10:32 amJoe says:
The motive was disguised, but thinly.
Sure. I realize the motivations. But, the actual impeachment was based on his actions during trial, not just his ideology. There also was another case where a judge was found innocent in the criminal trial but still impeached. I wouldn’t be surprised if some of the judicial impeachment choices over the years had some sort of political angle to them.
Anyway, there has been various cases where a ruling was remanded and the lower court in effect ignored the SC. The SC has been selective in calling them on it. Another repeat offender was a case against the defendant, a peremptory challenge case. To be evenhanded, the SC called them on it.
Quote
November 17, 2009, 1:48 pmD.R.M. says:
Sure. And on the third time, he blatantly mischaracterized the facts of the case, going so far as to reverse his own previous characterization. He amply demonstrated on the third time that he cares nothing for the truth or the law, merely using legal forms to cover his efforts to clothe his naked power-abuse. Impeach him.
Quote
November 17, 2009, 4:51 pmHerb Spencer says:
I don’t know if either CJ Bobs or SCOTUS has the power to remove any CCA judge from a case on remand, absent a clear conflict of interest or other absolute disqualifier. However, in another criminal capital appeal in the 1990’s, People of Cal. v. Alton Harris, SCOTUS DID order the CA9 not to consider any more stay of execution motions without SCOTUS’ express authorization to do so. Reinhardt figured prominently in that expensive mess.
Re: impeachment of federal judges, Congress has effectively allowed tenure de bene gesserint — during good behavior — to be supplanted by life tenure, which is NOT what Art. III says. Another example of an important Constitutional safeguard disappearing because of non-use. Cf. Gideon v. Wainwright and the rise of “civil Gideon,” a gratuitous and unlegislated Constitutional expansion spreading because of overuse and its resulting entitlement mentality.
Quote
November 17, 2009, 6:30 pmCommon Sense Political Thought » Blog Archive » The impracticality of capital punishment says:
[...] bench. The Supreme Court yesterday reversed Reinhardt 9–0, and as Orin Kerr reported, it was the third reversal in the same case: The basic dynamic of Ninth Circuit “liberal lion” Stephen Reinhardt overturning a death [...]