U.S. v. Cohen et al, No. 06-10145 (12-26-07). Tax protestors were convicted, and the lead protestor, Schiff, also was pro se, where he managed to get himself cited numerous times for summary criminal contempt. On appeal, the 9th (Tallman joined by Thomas and Ikuta) addressed mental condition testimony of codefendant Cohen and the contempt convictions of Schiff. The 9th held that it was prejudicial error for the district court to bar expert psychiatric testimony that Cohen suffered from a mental condition (narcissistic personality disorder) that affected his ability to discern the incorrectness of his views. This condition went to defendant's his mental state, and the ability to form specific intent. The government's argument that Cohen still knew right from wrong was incorrect, as the condition involved an inability to weigh and consider various beliefs, especially when falling under the sway of the codefendant here. The 9th holding falls in line with past precedent in other tax cases. As for contempt, the 9th vacates because the district court failed to follow the procedure of filing a form on each conviction, but the 9th (nudge-nudge_ said that upon filing the forms (stating the instances of each contempt act), the court could sentence him to the same punishment.

Smith v. Baldwin, No. 04-35253 (12-26-07) (en banc). In an en banc decision, the 9th finds that defaulted claims of prosecutorial misconduct locks the Schlup "actual innocence" gateway. Petitioner plead to a minimum of 30 years based on the testimony of his codefendant in a murder that he (Smith) had welded the crowbar. Unbeknownst to petitioner, codefendant's polygraph had come back "inconclusive," and later the codefendant recanted. The codefendant refused to testify at a subsequent hearing because the state threatened him with capital prosecution should the Smith plea be withdrawn (that would have meant that the codefendant used the weapon). The majority (Smith writing) held that procedural default was not excused by this evidence. A concurrence (Fisher joined by Schroeder and Fletcher) agreed with the result, but would do it on the narrower ground that the evidence of innocence did not show that no reasonable juror could have convicted under Oregon's affirmative defense against felony murder that the defendant was not aware of the intent to kill. In dissent, Reinhardt and Thomas both focus on the prosecutorial misconduct involved, and the cause and effect prejudice it excuses.