Thursday, March 24, 2011

Ninth Circuit Reaches New Heights of Idiocy

You are looking at the grand corridor on the first floor of the United States Ninth Circuit Court of Appeals in San Francisco. When it was first opened as a replacement for the old Post Office, it was called by Sunset Magazine the most magnificent public building in America. But beauty is only skin deep. It is the most frequently reversed Court of Appeals in the country, with reversals totaling nearly as many as all the other Circuits combined.

Like a wounded pigeon arising from the ashes, the building was spared destructive damage in the Great Earthquake and Fire of 1906, and after reconstruction and remodeling as a courthouse, the building has become the preeminent whited sepulcher of the law in America. Bookies have stopped taking bets on Ninth Circuit rulings which will be overturned at the United States Supreme Court since everybody knows the odds of that occurring are extremely high.

The most recent dangerous nonsense came recently as part of a Ninth Circuit Social Engineers reversal of a conviction in the brutal rape and murder of a 72 year old woman in Sacramento. The reason for the reversal? Racism, what else? The vicious murderer is black, the victim was white, and the jury was [largely] white. But it isn't the obvious agenda of the liberal judges on the court that is noteworthy. It's the utterly crazed reasoning they used to reverse the trial court conviction.

You see, there were no facts at issue on appeal. Only the arcane lawyering of leftist lawyers and judicial stooges. All the evidence, including substantial DNA evidence, convicted career violent criminal Steven Frank Jackson. Since it was Jackson's third conviction of a violent felony, he was sentenced to 100 years to life in prison. Even the sentence wasn't appealed, only the conviction. And that was based solely on the racial makeup of the jury. Felkner v. Jackson, 10-797.

Once again, even that might have a slight ring of truth to it if it weren't for the arguments the lawyers used on appeal. Here's the Alice-in-Wonderland reasoning. The District Attorney had three black people in the jury panel. Of the three, he challenged two, but allowed the third to be seated. The prosecutor dismissed one of the black potential jurors after he answered that he had experienced repeated police harassment over his lifetime. Aha, that must be it! Well, no. The juror that the prosecutor accepted answered the same question the same way. I should mention that the defendant's appellate lawyers had no serious problem with the prosecutor dismissing the third black person, a woman with a degree in social work. However, she was brought up in the appeal because it turned out that the prosecutor was in error since he always dismisses social workers and it turned out the prospective juror was not a social worker, though she does hold the degree.

For sane people with normal reasoning ability, the fact that one black man was dismissed and another with almost identical qualifications and responses was agreeable to the prosecution would be sufficient to dispel any concept that the dismissal was based on race and hostility toward the police. Not in the wonderful world of the Ninth Circuit. The court stated that the record reflected "different treatment of similarly situated individuals." Huh? If you think that's an unreasonable stretch of illogic, you need to know how the court explained it. Oh, wait, the court didn't explain it. What it did was throw a legal non sequitur into the ring, then based its decision on it. The statement is correct, but what the hell does it explain? Nothing. Why would it be grounds for a reversal? Who knows?

The United States Supreme Court reviewed the case. It found multiple fatal errors in the Ninth Circuit's ruling. But it summed up the Ninth Circuit's ruling in one quick word--"inexplicable." That was far too kind. In the body of the unanimous reversal of the Ninth Circuit and reinstatement of the lower court rulings, the high court held that the trial judge found that the prosecutor had very adequately explained his reasons for accepting or dismissing jurors, and that both the California Court of Appeal and the state Supreme Court had found no error. The unanimous decision means that even wise Latina Sotomayor and senile Ginsburg couldn't find anything wrong with the state's case.

The high court made it clear that it did not appreciate federal courts taking jurisdiction of state cases where there were already clear findings on constitutional issues. It also indicated its distaste for the imperial federal judiciary making up nonsensical rules ad hoc by holding that: "There was simply no basis for the Ninth Circuit to reach the opposite conclusion [from the state courts], particularly in such a dismissive manner (emphasis added). And if that doesn't grab your attention, remember that Barack Obama's nominees for the Ninth Circuit bench are to the left of the current court.


AndrewPrice said...

This is truly stupid. First, you only have a couple of strikes, so he may have had someone more important to strike and could only strike 1 of the 2. Heck, I had to leave people I didn't want on the jury all the time because I ran out of challenges. That's just how it works, you take the worst and leave when you run out of strikes, you're done.

Secondly, criminal cases need to be unanimous, thus having one black guy on the jury is the same thing as having two or four or six -- if you buy into the idea that somehow blacks vote differently than whites, which is a liberal presumption, not mine.

Unknown said...

Andrew: Even when they finally started passing multiple priors enhancements they still didn't want to offend anyone, so they use a sports analogy ("three strikes") instead of the good old fashioned "three time loser." In today's world of criminal psychotherapy and self-esteem, nobody's a loser.

The total lack of logic in the decision threw me for a complete loss. I've filed appeals in that court, and know it well. I expect social engineering and plain damn' stupidity, but this one outdid them all.

Joel Farnham said...


It sounds like someone didn't want another conviction going through.

Unknown said...

Joel: Maybe he could share a cell with Mumia Abu Jamal. He was an innocent victim of racism too, as we all know.

AndrewPrice said...

Lawhawk, It sounds pretty stupid. I can't see it surviving on appeal.

Unknown said...

Andrew: I don't think even desperate recent attorneys with no clients would take on another appeal for this clown. Even the Public Defender would hesitate. They might have had a chance, but procedurally they blew it when they went to the Supreme Court by failing to mount a serious challenge on the issue of guilt and sentencing. The pleadings essentially said "our only argument was the makeup of the jury." When even Sotomayor and Ginsburg can't find anything to support the idiotic Ninth Circuit opinion, you know that a unanimous Supreme Court has now announced that this case is D.O.A. for any new appeals.

Joel Farnham said...

I just thought of something. Could it be the public defenders didn't want to defend him before this last try but had to appeal and came up with this cockamamie idea never expecting the Ninth would accept it?

Unknown said...

Joel: That's a logical progression, but in this case he had a private law firm for the appeal. If I knowingly filed something that frivolous, I'd quit and become a grocery clerk or a hod carrier--at least that's honest work.

I once had an appeal that was extremely difficult. I used every precedent I could find, and I believed in my client even though I knew he had done what he was accused of (it was minor). But our job is to do the best we can without calling the law into disrepute, and I was not optimistic. I won the appeal. The presiding judge asked if I had anything more to say since I kept standing there looking mystified. I replied, "I did my job the very best way I could, but my arguments were weak, and I never in a million years thought you would grant the appeal." Fortunately, we were already off the record.

T_Rav said...

LawHawk, I'm frankly a little surprised we haven't seen a gripping, emotional show about how these rogue judges are bucking the system and fighting for freedom and equality for social outcasts like this poor black rapist. Oh wait! We just did; it was called "Outlaw" on NBC, and it failed miserably. (sigh)

Tennessee Jed said...

Ah, there you go again, Hawk. First you tease with a wonderful picture and description of a wonderful building only to ruin the taste of my dinner. It defies logic that people sitting on afederal appellate court could be that scary and without logic. It is as if there is some kind of banana republic going on out there.

Unknown said...

T_Rav: That series had every element of network TV depictions of the legal mind that causes me to start throwing things. A conservative Justice who discovers that applying the Constitution doesn't result in social justice so he takes the Road to Damascus and becomes a liberal. Strike one. He steps down from the most powerful and prestigious bench in the world to correct the wrongs he has done in the name of the law by becoming a private attorney who can affect only one case at a time. Strike two. He forms a law firm which will correct the horrific damage he has done by hiring social engineering twits and leftist hacks, and beats the law and order attorneys every time (because they're evil white supremacists). Strike three. Worst of all, it suffered from the debilitating flaw of being utterly boring.

You want to see a TV prosecutor-turned-defense-attorney show that's worth every minute? Find a DVD (if they're available) of James Woods in Shark. It won't teach you good legal ethics, but it's exciting, and he acts like a real high-power defense attorney. He knows all the prosecutor's tricks, and he doesn't make the mistake of becoming buddy-buddy with his scummiest clients. He represents them brilliantly, but he doesn't want the lowlifes as friends. Rarely does the plot involve an actual innocent client. Smits's murderers row clients were all innocent, just wrongly accused.

Outlaw was killed by its tone-deaf simpleton view of all those innocent victims of an evil system, resulting in miserable ratings. Shark was riding high, and got killed by the union writers' strike. Nobody, but nobody, does over-the-top like James Woods.

Unknown said...

Tennessee: I know. What can I say--I'm a born wet blanket. San Francisco has some of the grandest and most beautiful public buildings in the world. But they reflect what one wag said about the City--she's like a grand old whore, all paint and covering, but if you look too close, you see the decay and disease.

Interestingly, that gorgeous Beaux Arts building is right next door to the new federal building which I described as looking like a damaged 1950's Crosley clock-radio.

StanH said...

It seems sometime America should take the proverbial ball-peen hammer and take California out of it’s misery…wow! I further understand why you’re such a strong supporter of the 2nd Amendment, man! …you need to be armed in California. It’s like a criminals fantasy land, they probably get together and laugh at the stupidity of the judicial system, everything worked as it should, and off to the 9th for laughs and hilarity. Thank God there are adults (Supremes) watching over them, and even that’s getting dicey.

T_Rav said...

LawHawk, it's pretty bad when you can tell in the first five minutes that the show was going to suck. And I was kinda disappointed, because the rumor mill was that it was going to have a conservative/libertarian take on the legal system. So I basically felt like I'd been punched in the face--excuse me, I mean I felt like NBC had taken "kinetic fist action" against my face. (I'm copyrighting that, by the way.)

As for Shark, I never watched more than an episode or two, but if I'm not mistaken, wasn't he a defense attorney turned prosecutor?

Unknown said...

Stan: Everything the Ninth Circuit has learned it got from the Jerry Brown/Rose Bird California Supreme Court in the 70s. The case that got Bird and two other leftist justices recalled and replaced was as bad as this one. A thug ties up and tortures a rival gang member. Then he puts seven bullets into the back of the rival's head. The trial jury found him guilty and the death sentence was imposed. Bird looked at the evidence, and reversed the death penalty because the prosecution had not proven that the thug "intended to kill" the rival. What exactly did he intend to do? Air-condition his rival's head on a hot day? Later, and outside of court, she added that her other reason was that there were too many black men on death row. Sound familiar? Leftist race-baiting judges not only fail to follow legal logic, they follow no logic of any kind known to humankind.

Unknown said...

T_Rav: I mistook the previews as well, but in a different way. I thought it was going to be a conservative justice who stepped down because he was tired of liberal majority opinions which stretched the law to the breaking point in order to satisfy the secret liberal agenda.

As for Shark, you're absolutely right. I was busy with shrieking grandkids and out-of-control cats and dog. Or perhaps it was my memory of Seven-Of-Nine as the the DA that he now had to work for. I did reverse the roles, but I had followed the same route twenty years earlier, so I actually did know he went from defense to prosecution. What I meant to do was to point out that as a defense attorney, that was how he treated his clients, so the switch to prosecution was much easier than it would have been for many defense attorneys who do have a tendency to identify with their clients. He was also able to understand that there really are those very rare occasions where the wrong person does indeed get convicted, and he could act on that. I wasn't having one of my frequent senior moments, my fingers just got ahead of my brain. My bad. LOL

JB1000 said...

In 2016, President Barak Obama will be running for his third term. This, of course, will require some changes to that darned pesky 22nd amendment to the constitution.

I see three possibilities.
One, Obama could simply ignore the Constitution. It would not be the first time.
Two, the Democrats could easily repeal the 22nd amendment.
Three, and I think this would be a very useful precedent, the Ninth Circuit could declare the 22nd amendment is Unconstitutional. While that does sound oxymoronic, it would make the constitution much more malleable.

JB1000 said...

Truth is stranger than fiction and the Ninth Circuit can knock them both out in the first round.

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