The Volokh Conspiracy

Newt Gingrich has some recommendations for reforming the Ninth Circuit:

“Congress can say, ‘All right, in the future, the Ninth Circuit can meet, but it will have no clerks,’ ” Mr. Gingrich told the Values Voter Summit. “ ‘By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law library, either.’ ”

I don’t know if Gingrich is serious, but his first comment reminds me of a somewhat related post from 2004 that I thought might be worth reposting: Bench Memos and the Ninth Circuit. I have reprinted it below.
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[W]hy is it that an unusually high number of Ninth Circuit decisions can be characterized as outliers? I am interested less in the occasional high-profile opinions than in the run-of-the-mill cases. In my experience, at least, it is not uncommon to research a legal issue and find cases from several circuits all holding one way, and then a Ninth Circuit decision going the other way. Why is that? Proponents of dividing the Ninth Circuit often point to the court’s size, but I have a pet theory: the problem with the Ninth Circuit isn’t so much its size as its bench memos.

First, a bit of background. The usual practice on the Court of Appeals is for each of the three judges on an appellate panel to task one of his or her law clerks to author a bench memo for each case. (A bench memo is a memorandum from a clerk to a judge explaining the facts of the case, the lower court decision, and the relevant precedents, as well as recommending a rationale for resolving the appeal.) Some judges do not require formal bench memos, but most task their law clerks with taking an independent look at the record and the law of each case. Judges don’t follow bench memos blindly, of course. But because many appellate cases are poorly briefed by the litigants, a law clerk’s memo can have a significant influence on how a judge looks at the case. In most circuits, the practice of each judge assigning a clerk to write a bench memo means that by the time of oral argument, three different sets of judges and clerks have taken the case apart and put it back together.

My understanding is that the Ninth Circuit works a bit differently. When a Ninth Circuit panel is scheduled to hear a case, one chambers is assigned the task of writing a single bench memo that is shared with the other two judges and their clerks. It’s a time-saving device; a single clerk does the work, freeing up the other chambers to work on other matters. While the other judges on the panel are free to ignore the shared memo, or to require their clerks to write separate memos, in many cases that one bench memo sets the tone for what the panel is likely to do with the case.

My pet theory is that the Ninth Circuit’s bench memo practice explains some of its quirky opinions. When only one chambers takes a ground-up view of a particular case, the other two chambers are less likely to notice when the bench memo is missing something important. In a run-of-the-mill case, the common memo lets other chambers be a bit less careful about researching the case. Being a bit less careful, they are less well equipped to point out a flaw in the memo’s reasoning or possible inconsistency with other cases. If nothing in the memo jumps out as clearly incorrect and the judges do not disagree sharply on the outcome of the case, no one on the panel will notice if the bench memo is a bit off. The judge whose chambers generated the memo is more likely than not to be assigned the opinion, and the resulting opinion is likely to reflect a good chunk of the initial bench memo.

I don’t want to overstate the case. The Ninth Circuit’s bench memo practice is probably only one factor among several in explaining its tendency to generate somewhat quirky rulings. Many Ninth Circuit opinions are excellent, and I am sure many Ninth Circuit judges do not defer to memos from other chambers. At the same time, my guess is that the Ninth Circuit’s bench memo practice has at least some role to play in generating some of the Circuit’s more idiosyncratic rulings.

Lawrence Hurley of the Daily Journal reports that fully one-third of the cases on the Court’s docket thus far this term — 18 of 54 — are from the U.S. Court of Appeals for the Ninth Circuit. (Hat tip: How Appealing)  Given that the Supreme Court is a bit more likely to reverse than to affirm, it would seem the Ninth Circuit is in for its share of smackdowns in OT 2010.

UPDATE: According to Ed Whelan, if one excludes cases on the docket that are appeals of state high courts, and includes an appeal of a decision by a three-judge  panel in California, the Ninth Circuit accounts for nearly 40 percent of the relevant cases, even though the Ninth is responsible for only 20 percent of the cases heard by federal appellate courts.

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.

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).”