It’s dog-bites-man at the Supreme Court today. The Court once again has summarily reversed the Ninth Circuit in a habeas case. Today’s decision is here: McDaniel v. Brown. The Ninth Circuit’s divided decision (authored by Judge Wardlaw and joined by Judge Hawkins, with Judge O’Scannlain dissenting) is here.
Our blogging software asks us to put our posts in “categories.” In light of how often the Supreme Court summarily reverses the Ninth Circuit in habeas cases, I am adding a new category: “Ninth Circuit Smackdown (Again).”
theobromophile says:
Prof. Kerr: is that tag for a smackdown of the Ninth, when the Ninth performs a spectacular smackdown of its own, or both?
January 11, 2010, 11:16 amOrin Kerr says:
Theobromophile,
I just clarified it in the post — it’s the former. All potential cases of the latter are tentative pending further Supreme Court review, so it’s hard to know what counts as a “smackdown.”
January 11, 2010, 11:18 amruuffles says:
There may well be another one coming this morning in the Prop 8 YouTube case. Problem: the trial starts at 9 PST, 12 EST. The Court is in arguments until 12 EST. Could a stay still come, before the start of the trial? IIRC, the live broadcasting of the trial at various federal courthouses, in addition to the delayed YouTube bit, was challenged.
January 11, 2010, 11:23 amDrGrishka says:
Ruuffles,
Seek and ye shall be answered. SCOTUS just issued a stay at least until Wednesday at 4pm. It may act to completely bar coverage later.
January 11, 2010, 11:28 amPubliusFL says:
What does “capital habeas case” mean these days? Originally, a capital case involved a death sentence. I understand it’s often been expanded to cover cases where a life sentence was imposed as an alternative to capital punishment (but the offense was nonetheless a capital one, where death was an option). Capital punishment does not seem to be in the picture at all in this case, so what’s “capital” about it?
January 11, 2010, 11:43 amAnderson says:
As Publius notes, this is a rape case w/ a life sentence, not a capital case.
January 11, 2010, 12:12 pmOrin Kerr says:
Ack — sorry about that; I have corrected the post to take out the “capital” comment. (Usually I think of these Ninth Circuit habeas fudges as limited to the capital setting, but of course they need not be so limited.)
January 11, 2010, 12:14 pmspo says:
This reversal was bad even by Ninth Circuit standards. There were a litany of errors, and the Ninth Circuit even botched how they evaluated the facts, something which is pretty much a rookie mistake. And to top it off, the Supreme Court referred to one of the numerous errors as “egregious”. Ouch.
At some point, the Supreme Court should do something about this. The Ninth’s opinion in this case was so bad that the competence of the judge who wrote it (and the judge who concurred) need to be called into question. And, for the most part, the issue cannot simply be chalked up to the inevitable differences that a liberal lower court is going to have with a conservative higher court (I’m referring to the majorities on the respective courts). These are per curiam reversals, and they are harsh. In Belmontes, Reinhardt was called out for slanting the factual record, a definite no-no.
January 11, 2010, 12:18 pmAnderson says:
Usually I think of these Ninth Circuit habeas fudges as limited to the capital setting, but of course they need not be so limited.
Their reign of error knows no boundaries.
January 11, 2010, 12:29 pmBob from Ohio says:
The Supremene Court should just issue a standing order granting cert and reversing all 9th opinions granting habeas relief.
Save time and nmoney for all concerned..
January 11, 2010, 12:38 pmzuch says:
Prof. Kerr:
IIRC, the Fourth Circuit (at one time, at least) was reversed more than the Ninth. And it’s a bit misleading to look at reversal rate in cases taken up; if the Supes strongly agree with the circuit court, they are not as likely to even hear the case.
Cheers,
January 11, 2010, 12:48 pmdrunkdriver says:
This is a very strong slap at the 9th- they start by saying the courts below “clearly” misapplied Jackson. They go on to a rather detailed canvassing of the evidence- that, to me, is a slap at a lower court, a way of saying “we shouldn’t have to do this- this is your job, but you screwed it up so here goes.” And even the respondent couldn’t defend their resolution of the Jackson claim- where they said there was “insufficient evidence” but ordered a new trial! That was an embarrassing and inexplicable mistake. It’s hard to understand- these are experienced judges, and they hire some of the country’s top law grads as clerks. How they couldn’t have realized that you can’t order a retrial when you grant relief based on Jackson, is just incredible.
January 11, 2010, 1:24 pmOrin Kerr says:
zuch,
I’m talking about slapdowns like summary reversals, not just reversals. Any circuit can get reversed. But a summary reversal, on the briefs without argument, means that the lower court was just flat out wrong.
January 11, 2010, 1:49 pmDave N. says:
It is even worse. The United States District Court granted habeas relief on the Sufficiency of the Evidence claim and the Ninth Circuit affirmed. So leading into the unanimous smackdown from the Supremes, only one federal judge got this case right.
I would also note that the Ninth Circuit refused to grant Rehearing En Banc, despite the egregious error.
(Conflict alert: I co-authored the State’s brief in the U.S. Supreme Court)
January 11, 2010, 1:50 pmOrin Kerr says:
Way to pick the low hanging fruit, Dave N. ;-)
January 11, 2010, 2:00 pmDave N. says:
I would note that this case is somewhat different from the other summary reversals because both sides fully briefed the case. It was scheduled for oral argument on October 13, 2009 and taken off the oral argument calendar when Brown changed his position in his Answering Brief (arguing for the first time that Jackson was inapplicable).
So much for my quill pen.
January 11, 2010, 2:50 pmLarryA says:
But isn’t the Ninth useful, in that its decisions give us splits with the other courts that can move cases to SCOTUS?
January 11, 2010, 2:53 pmKent Scheidegger says:
Expanding on Dave’s comment, the Ninth Circuit’s failure to correct this obvious error en banc is the deeper problem here, IMHO. More on this at Crime and Consequences.
Full disclosure: I wrote an amicus brief supporting Dave’s brief.
January 11, 2010, 3:11 pmVader says:
“Your Honors, I’m hear to appeal a decision by the Ninth Circuit Court. But I have additional arguments for my position as well …”
January 11, 2010, 3:23 pmTravis Ormsby says:
To what extent is there a danger that Supreme Court will take the attitude that I perceive in this post and some of the comments that a habeas decision by the 9th Circuit ought to be immediately questioned (automatically reversed, even) based on its provenance, not its reasoning?
Since the reversal is summary, we can’t even compare the reasoning used by the 9th Circuit to the Supreme Court’s.
January 11, 2010, 4:25 pmKent Scheidegger says:
None. The high court only takes a small fraction of the cases it is asked to take, including Ninth Circuit habeas cases. The few they do take must be selected on the basis of the reasoning of the opinion and the importance of the case.
Huh? Sure we can. They both have written opinions. Just read them. “Summary,” in this context, means without an oral argument, not without a written opinion.
January 11, 2010, 4:51 pmreadery says:
The Supreme Court did not discuss the petitioner’s best argument because it said Brown had failed to present it adequately to the courts below. That argument, I believe, is stronger than the Court suggested.
The prosecution made significant note of the trial DNA expert’s testimony that there was only a 1 in 3 million chance of the DNA matching a random person. The prosecutor converted that chance into a 1 in 3 million chance of innocence, emphasizing the unlikelihood of such a match in closing arguments.
However, because the petitioner had raised a serious alibi defense that the assailant was his brother — a very serious alibi defense, because the victim had initially named the brother and not the defendent in her report to the police — the odds of two brothers having similar DNA are lower — much, much lower — than the odds for a member of the general public. As the Supreme Court noted, later analysis showed the odds to be something like 1 in 132, which is 4 full orders of magnitude less — 4 zeros removed.
In addition, a substantial amount of the evidence was equivocal. Some of it — not just the victim’s initial report — also pointed to the other brother.
Now, the DNA evidence certainly suggests that it is much more likely than not that the State has prosecuted the right brother, and there was other evidence as well. Therefore, Jackson v. Virginia is satisfied — a rational jury could find guilt beyond a reasonable doubt, even if given a correct interpretation of the odds of the alibi.
Nonetheless, the evidence was far less overwhelming than the jury was led to believe, and this troubles me. When DNA evidence is the principle basis of conviction, it seems to me that the jury needs to be given an analysis that addresses alternatives that are actually at issue at trial, and not just a “random person” as the only alternative. As here, when the defendent provides a plausible alibi involving a relative which has substantial evidentiary support and which substantially changes the genetic-marker match odds, it seems to me the DNA evidence needs to address that alternative.
The jury might well have still convicted if they were told the odds given the alibi were 1 in 132 and not 1 in 3,000,000 and if the prosecutor’s attempts to use the 1 in 3,000,000 as odds of innocence were properly objected to. But they might have thought more before doing so.
It seems to me that the defendent, and the reliability of the criminal justice system, are both entitled to the benefit of that thought.
January 11, 2010, 6:53 pmreadery says:
Also, the defendant was one of 4 brothers, and the subsequent report said being 1 of 4 brothers lowered the DNA odds further, to an estimated 1 in 66. The Supreme Court discounted this scenario because the other two brothers lived out of state. But the jury nonetheless should have been the people to consider the matter in the first instance, putting the DNA evidence correctly interpreted together with other evidence, and determine each scenario’s plausibility for themselves. After all, the DNA scenario the jury did here — the “random person” scenario — was even less plausible and hence even more discountable since all the other trial evidence pointed to either defendant or a relative.
January 11, 2010, 7:15 pmDave N. says:
Readery,
There were 5 Brown brothers. Two of them lived in Utah. One of those two was 15 years old. There was also an ineffective assistance of counsel claim (still pending in the 9th) regarding a claim that counsel was ineffective for not trying to smear the victim’s stepfather, who was not one of the Brown brothers and who was at work that night.
If you want to argue the facts of the case, argue them accurately.
January 11, 2010, 8:29 pmspo says:
readery, the Supreme Court has been clear that a defendant is not entitled to the presumption of an irrational (or lawless) factfinder
January 11, 2010, 9:09 pmspo says:
David–lighten up. This was a smackdown. When SCOTUS says that you made an “egregious” error (and highlights a bunch of others), you;ve been smacked down.
January 11, 2010, 9:11 pmreadery says:
One doesn’t have to be irrational or lawless to not be an expert in statistics. Correctly interpreting the DNA test in light of the actual alternatives relevant to the trial requires expertise and expert interpretation. A generic ‘random person’ interpretation that doesn’t consider the particular trial context may well be inadequate expert testimony in this context.
January 11, 2010, 9:33 pmspo says:
readery, you had written that it was up to the jury to sort out the exclusions of the brothers–true enough, but on appeal, the possibility that juries could go afield to ignore evidence and blame someone else is discounted …. thats what I was getting at.
January 11, 2010, 9:57 pmspo says:
You don’t need a lot of “intelligent analysis” to determine that the Ninth Circuit panel got clowned today. FWIW, Judge Wardlaw (who penned the error-filled opinion) and Judge Hawkins (who joined it) are both Clinton appointees.
January 11, 2010, 10:00 pmFooty Fan says:
@ spo
FWIW, Judge Wardlaw (who penned the error-filled opinion) and Judge Hawkins (who joined it) are both Clinton appointees.
Worth nothing I would say. Thanks though for providing a very good example of an orthogonal issue, to follow on with other discussion on the site.
January 12, 2010, 10:52 amzuch says:
Thanks for the clarification. Any statistics on this for the various circuits? Have they changed over time with the changing Supreme Court makeup?
Cheers,
January 12, 2010, 1:13 pmMartinned says:
Is it just me or did Thomas use his concurrence to once again advocate locking up (or executing) innocent people?
(Moved from the Spisak thread where I inadvertently commented about this.)
January 12, 2010, 2:25 pmDave N. says:
Martinned,
I think it is you. I read the Thomas concurrence as expressing his opinion that Dr. Mueller’s reports were irrelevant to the issue before the Court: whether there was sufficient evidence to sustain Brown’s conviction.
I did not read his concurrence as suggesting anything other than his belief that the Court talked about Mueller’s report when it didn’t need to do so.
January 12, 2010, 7:26 pmMartinned says:
Doesn’t the opinion argue against considering evidence that became available only after the original trial was concluded?
January 12, 2010, 7:59 pmDave N. says:
Only in the context of determining whether there was sufficient evidence presented at trial to sustain the conviction. Justice Thomas rightly concludes that evidence discovered after the trial is irrelevant to that determination — though it might be relevant for other issues.
January 12, 2010, 10:53 pmMartinned says:
Such as whether the guy should be released?
January 13, 2010, 9:53 amDave N. says:
Such as the claims of ineffective assistance of counsel, which remain unresolved in the 9th Circuit.
January 13, 2010, 10:16 amDavid Kaye says:
In thinking about ineffective assistance, is it noteworthy that Brown argued in one of his appeals or postconviction proceedings that his lawyer erred in even mentioning the probability of match to a brother because he told his lawyer he did not to suggest that anyone in his family might have attacked the girl?
With regard to brothers, is the exact number critical? The expert testified to the probability that “the next” brother would match was 1/6500. For the DNA tests actually performed in the case (which were more extensive than those introduced at trial), the probability of a match to one sibling is about 1/4563. (See the essay in September 2009 on Michigan Law Review’s First Impressions.) The probability of a match to at least one of n brothers is about n/4563 when n is 1, 2, 3, or 4. Given that the only brothers in the vicinity had alibis, it’s hard to see how harping on brothers would have helped the defendant much.
January 17, 2010, 1:42 pm