Jackson v. Brown, No. 04-99006 (1-23-08). "A promise made is a debt unpaid." The state's promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind. The district court grants partial relief, upholding the convictions (two elderly women murdered) but vacates and remands the death sentence and the special circumstances findings. The state concedes the death reversal, but argues for special circumstances. The 9th affirms district court, allowing the vacation to stand because of the Brady implications and prejudice. The 9th rejects relief on petitioner's claims. There is an interesting discussion on prisoner clothes. The petitioner wore prison garb at trial. The 9th acknowledges that being forced to wear inmate clothing is unconstitutional, but the Supremes require an objection to be made. Petitioner argued here that court-appointed counsel should not be forced to object, and that he is in effect a state actor. "The clothes make the man." The 9th rejected the claim, requiring the objection, and opining that it was a tactical choice by counsel.

Estrada v. Scribner, No. 06-55013 (1-23-08). Why can't jurors stick their convictions instead of caving into peer pressure and voting for conviction? Here petitioner claimed that he fended off the advances of the victim, who had offered him a ride and then supposedly sexually assaulted him. In the fight, the petitioner stabbed the victim to death. He was charged with first and convicted of second. Subsequently, there were various juror declarations, in which jurors said that they were pressured, and felt compelled to vote the way they did even though, in their heart of hearts, they felt the petitioner was only guilty of manslaughter. The prosecutor got other declarations from jurors that conceded that it was internalized pressure. The 9th agreed with the district court that the evidence amounted to juror mental processes, and were inadmissible. The 9th also rejected the claims of extrinsic evidence being introduced.

Frantz v. Hazey, No. 05-16024 (1-22-08) (en banc). Should counsel have a say when a jury note comes out? Sure. What about when the petitioner is representing himself? Sure. But if there is advisory counsel? Sure, again, if the advisory counsel was not given consent to act for the self-represented defendant. And what if the court forced petitioner to communicate through stand-by counsel? Yes, but let's be sure of the facts. That is the issue here, where the 9th remanded to the district court to see what extent, if any, advisory counsel was given the green light. The interesting question here is what to do, under AEDPA, when the state court bucked a Supreme Court decision (McKaskle) but decided the case not on the constitutional issue, but under the harmless prong. The state's sidestepping the constitutional issue (a move beloved by all courts) trips up the AEDPA analysis because the due deference to a ruling is hard to achieve when the court steps around the issue. The 9th tackles this, and holds that the 9th can review the constitutional issue de novo. Here, the Supremes have held that denial of counsel is structural. The denial here appears to have occurred in the context of self representation, but some facts need to be fleshed out. There is a concurrence by Gould (joined by O'Scannlain, Rymer, Silverman , Callahan, and Ikuta) that agrees with the result, but finds the majority (Berzon joined by Schroeder, Pregerson, Thomas, and Bea) unduly complicated, and dealing with facts that are not established (the dreaded hypotheticals) when it comes to duties of stand-by counsel. In a dueling concurrence by Kozinski (joined by Wardlaw, Paez, and Bea), this concurrence argues that Gould's concurrence misses the point: it is not the act of stand-by counsel speaking for the self representing petitioner, but here, whether the court forced petitioner to speak through counsel. cases delineating the duties, or responsibilities, of stand by counsel are not affected. The remand will determine what took place.

Congratulations to AFPDs Mike Burke, Paula Harms, and Megan Moriarty, District of Arizona (Phoenix).