Thompson v. Runnel, No. 08-16186 (9-8-10) (Berzon with Goodwin; Ikuta dissenting). The police lie, cheat, and evade the Constitution -- interrogating the petitioner about a murder without Miranda warnings, lying to him, and then giving him the warnings after he is exhausted and emotionally distraught, and making him walk through the confession. In habeas, the state (California) shrugs and says, "hey, Seibert wasn't decided yet, and so we get a pass." "No," says the 9th Circuit. First, petitioner raised the Fifth Amendment issue, preserved it, and it is to be considered. Precedent from the early sixties that would require a filing of a new habeas in light of precedent is very narrow, and probably overturned by Teague. Besides, the police were conducting a policy to evade Elstad, and the giving of Miranda after the confession, and before the second set of statements, was also ineffective. The statements were undoubtedly prejudicial. Ikuta dissents, arguing that AEDPA requires the "look" at reasonableness at the time, and not in light of subsequent decisions (like Seibert). She would find the actions not deliberate; and the giving of warnings adequate.

Heishman v. Ayers, No. 07-99016 (9-8-10) (Per curiam -- Silverman, Fisher and M. Smith -- with Silverman concurring). The prosecution lies, cheats, and evades the Constitution -- withholding evidence of a star witness having sex with law enforcement, getting a break on misdemeanor charges, police reports on thefts, and funds for upkeep during trial. But hey, concluded the 9th Circuit, the cross examine at trial was pretty good, and there was no evidence because the petitioner was really really bad, convicted of murdering one of his rape victims to prevent her from testifying. The 9th Circuit also finds that mitigation started a mere two months before trial was excusable under the 1980's standards, and was not ineffective. The 9th Circuit finally upholds the district court's denial of expanding the record to include a mitigation expert's report of petitioner's childhood abuse. The failure of counsel, or experts, to uncover such abuse was not by itself IAC. Concurring, Silverman emphasizes the interplay between FRE 703 (experts) and evidence relied upon by the expert to render her opinion. In this case, the issue was whether the petitioner's assertion of childhood abuse becomes evidence and part of the record. The petitioner is the only one who was a witness to the abuse, but he never testified, nor submitted a declaration. FRE 703 permits experts to render opinions based on hearsay so long as it is the type of evidence usually relied upon by those working in the field. The Rule, though, does not perform evidentiary alchemy and transfer inadmissible hearsay into admissible evidence; it is only the expert's opinion that becomes admissible. The district court did not err in denying the petition.