It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter is in some ways a stereotype of a summary reversal candidate: it’s from the Ninth Circuit (check), the opinion reverses a murder conviction on habeas (check), there’s a vigorous dissent from a conservative judge (Judge Jay Bybee, joined by Judges O’Scannlain, Kleinfeld, and Ikuta–check), and perhaps most importantly of all, the author of the majority opinion is liberal lion Judge Stephen Reinhardt (check).
It is often repeated that Judge Reinhardt has said of the Supreme Court, “They can’t catch ‘em all.” Whether he said it or not, the Justices now act as if they must try. Thus, if you search “Reinhardt” just on this webpage, you get (among other entries) “Reinhardt Reversed in Buttons Case,” “Supreme Court Opens Term with Reinhardt Reversal,” “Reinhardt Reversed for Third Time in Same Case,” and the not-quite-as-snappily-titled “First Opinion in an Argued Case in OT08” (“the Court reversed a Ninth Circuit panel of Reinhardt, Betty Fletcher, and Dorothy Nelson”). Reading about these cases gives one an extreme form of déjà vu, more aptly described as Groundhog Day Syndrome.
There’s one thing about Harrington v. Richter that makes this case a bit more unusual as a summary reversal candidate: it’s a decision of the en banc court, or at least an en banc panel under the Ninth Circuit’s en-banc-lite procedure. But the evident importance that moved the Ninth Circuit to take the case en banc and the greater visibility and influence of such opinions makes it more likely the Supreme Court will conclude the case warrants review in some manner. And besides, summary reversal of an en banc Ninth Circuit decision is hardly unprecedented. See, e.g., Gonzales v. Thomas, 547 U.S. 183 (2006); California v. Roy, 519 U.S. 2 (1996); INS v. Wang, 450 U.S. 139 (1981).
The case involves California’s prosecution of Joshua Richter and Christian Branscombe for murdering Patrick Klein and trying to kill Richter’s marijuana dealer, Joshua Johnson. The state claimed that Richter and Branscombe had shot Klein and Johnson while they were trying to steal Johnson’s gun safe; the defense claimed that Johnson had “freaked out” while high and accidentally shot Klein while trying to shoot Branscombe (for reasons that aren’t completely clear to me, although I guess you can’t demand clarity of someone who is, by hypothesis, freaking out). The evidence apparently jibed with Johnson’s stealing-my-gun-safe account. Believing that the case was sufficiently strong that they did not require more, the police, according to the majority, “did not pursue an in-depth forensic investigation” and did not immediately perform blood typing or spatter analysis nor attempt to discover whose blood had pooled in the bedroom doorway. After the trial began, the state performed a blood spatter analysis of the crime scene and tested some blood spattered above the pool, which the experts said indicated that Klein could not have been killed in the doorway (as Richter claimed) and that the spattered blood there was not Klein’s.
Richter and Branscombe were convicted. After his conviction became final, Richter’s federal habeas petition was rejected by the district court and a unanimous panel of the Ninth Circuit. But then the Ninth Circuit granted rehearing en banc.
In a 39-page opinion that opens by quoting Sun Tzu’s The Art of War (“To . . . not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues”), Judge Reinhardt, joined by Chief Judge Kozinski and Judges Silverman, Wardlaw, Fisher, Paez, and Smith, held that defense counsel’s performance was constitutionally deficient because he had not attempted to obtain forensic evidence to establish that the blood pool in the doorway was Klein’s. The “failure to consult any forensic expert constituted a threefold abrogation” of counsel’s duty to provide effective assistance by failing to investigate adequately before settling on a trial strategy, by failing to determine how the forensic evidence might assist the defense, and by failing to consult experts who could have assisted at trial. The majority held that the error was prejudicial, and the state court’s contrary conclusion was an objectively unreasonable application of the governing case, Strickland v. Washington. Experts obtained later had given affidavits saying that Johnson could not have been standing while bleeding in the doorway (as Johnson claimed) and that the experts “could not exclude the possibility” that the blood pool contained both Johnson and Klein’s blood.
In a 46-page dissent, Judge Bybee called the majority opinion “a model of the intrusive post-trial inquiry into attorney performance long rejected by the [Supreme] Court.” He argued that defense counsel’s decision not to pursue forensic evidence was reasonable given that even the state did not focus on it until mid-trial and because pursuing it “might well have resulted in the discovery of additional inculpatory evidence.” Accordingly, it was “perfectly reasonable” for defense counsel simply to cross-examine the prosecution witnesses as they came and not attempt to present affirmative forensic evidence. The dissenters said that the majority had “plainly enlarge[d] the constitutional duty of defense counsel to seek out and present expert testimony,” which was far more than the Supreme Court previously had required.
I repeat that it’s still too early to have much of an idea what the Court is doing with this case. It has only relisted twice, which isn’t that unusual, and the Court hasn’t called for the record. The Court could simply be taking a close look at the case, as befits it when an en banc court of appeals has vacated a murder conviction and a state has petitioned for certiorari. But a majority of the Supreme Court has a narrower view of effective assistance of counsel than the Ninth Circuit majority seemed to employ, as demonstrated in a summary reversal earlier this term in Bobby v. Van Hook, where the state didn’t even have the benefit of the tailwind which AEDPA gives it (see slip op. 3). And the Court has repeatedly summarily reversed in AEDPA cases to drive home that habeas relief is not to be granted unless a state court has unreasonably applied clearly established Supreme Court precedent.
Kent Scheidegger says:
Why do people call Reinhardt a “liberal lion”? Is it a love for alliteration?
February 16, 2010, 4:30 pmPiglet says:
Sounds to me like the majority has lost track of the realities of actually having to make important strategic decisions in litigation. Deciding not to perform scientific testing because one is afraid of what the result might be is standard practice and, IMO, is often the most prudent strategic choice, especially if you have reason to think you won’t like the results, which sounds quite plausible in this case.
February 16, 2010, 4:38 pmDilan Esper says:
Why do people call Reinhardt a “liberal lion”? Is it a love for alliteration?
I suspect you are on to something, Kent. I see a fair amount of “crusty conservative”, “crunchy conservative”, and “curmudgeonly conservative”.
Indeed, I’ve seen people with more jaded views of liberals talk about “loony liberals” or the “loony left”.
Anything that comes trippingly off the tongue.
February 16, 2010, 4:42 pmOrin Kerr says:
“liberal lion” is a widely used term; It’s not like the phrase was made up for Reinhardt.
February 16, 2010, 5:20 pmCrunchy Frog says:
Teddy kennedy is dead. They had to give the label to somebody.
February 16, 2010, 5:23 pmSigivald says:
It is often repeated that Judge Reinhardt has said of the Supreme Court, “They can’t catch ‘em all.”
Plainly he is not familiar with Pokemon, where you “gotta catch ‘em all”.
February 16, 2010, 5:50 pmAlex says:
Without reading the dissent, it shouldn’t really matter whether the STATE did or did not take up a particular theory of the case until mid-trial (or test certain theories). Isn’t the relevant consideration whether a reasonable defense attorney would have done before going to trial?
February 16, 2010, 6:04 pmruuffles says:
Oh cmon now. You highlight the fact that a bunch of law and order conservatives dissented, but not that Kozinski joined Reinhardt’s opinion?
February 16, 2010, 7:37 pmDNJ says:
And Judge Milan D. Smith, Jr., another George W. Bush appointee. Not to mention that Judge Silverman is a former prosecutor and relatively conservative on law and order issues, though he was appointed by President Clinton.
February 16, 2010, 7:44 pmBuddy Hinton says:
Why is the defense attorney even deciding what forensic tests to have done. Seems like a call the defendant should be making.
Then there is the issue of why the prosecution kept going with their case after it was shown that their star witness had his facts wrong.
February 16, 2010, 7:57 pmBuddy Hinton says:
Fun quote:
February 16, 2010, 8:19 pmspo says:
Kozinski is not a law and order conservative. He authored, for example, the Ninth Circuit’s opinion in Uttecht v. Brown.
February 16, 2010, 8:24 pmRelist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance | Liberal Whoppers says:
[...] here: Relist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance [...]
February 16, 2010, 9:09 pmohwilleke says:
The argument against granting certiori is that Harrington v. Richter is a highly fact specific application of a legal standard that likely doesn’t have much precedential value, even in the 9th Circuit, in other cases.
The allegation of the defense is not simply that counsel was ineffective (a claim most often made in the penalty phase), but that the conviction was obtained through the perjury of a state witness (of which the defendant apparently claims to have informed his counsel); prejury whose existence is established with physical evidence and which was not revealed due to the highly atypical failure of law enforcement to collect physical evidence in a murder case where there was abundant physical evidence available.
This is quite different from the run of the mill ineffective assistance case where defense counsel has allegedly refrained from arguing that the defendant was abused as a child or had diminished capacity in the sentencing phase of the trial, or has said something in a closing argument that effectively concedes some issue that was only marginally contested with the evidence.
It also has the potential to open the door to serious consideration of the “actual innocence” issues presumably raised by counsel in habeas appeals and preserved all the way, an issue that I suspect the conservatives on the U.S. Supreme Court would prefer not to revisit.
February 16, 2010, 9:41 pmpublic_defender says:
This is why it’s important for collateral review counsel to nail down the reason (or lack thereof) that counsel failed to do something. If you don’t, people who have never defended a case in their life often make fanciful, wild-a$$ guesses as to why a lawyer might have done whatever stupid thing was done (or not done).
Kozinski is “law and order conservative.” He just expects the government to follow the law, too. And I wouldn’t associate the term “law and order” with the pro-torture judge who authored the dissent.
February 17, 2010, 6:27 amhilzoy fangirl says:
That kind of conduct in a closing argument ought to have resulted in a mistrial. This case just highlights how screwed up habeas review is, that IAC claims are the only way to attack seriously flawed convictions even where the IAC claim is itself fairly tenuous.
February 17, 2010, 8:14 amSCOTUSblog » Wednesday round-up says:
[...] the Volokh Conspiracy, John Elwood writes about a petition that has been relisted twice, Harrington v. Richter (09-587), [...]
February 17, 2010, 9:39 amCockle Law Brief Printing, Co. Blog says:
[...] conducting research on decisions written by particular federal appellate judges that are later granted by the Court, I [...]
May 6, 2010, 4:11 pmMagda says:
need help,
May 13, 2010, 7:21 pmim suspose to be doing a moot trial in my ap united states history class for this particular case and im the respondant, so how would i be able to convinve the court that richter claime is right?