Monday, March 18, 2013

U.S. v. Hayat, No. 07-10457 (03-13-13) (Berzon with Schroeder; dissent by Tashima)
"Scrupulous fulfillment of [the constitutional to do justice] is all the more critical when the government asks a jury to deprive a man of his liberty largely based on dire, but vague, predictions that he might commit unspecified crimes in the future. Because this duty was not fulfilled [here], I would reverse the conviction and remand for a new trial." (p. 59). Stirring language. Too bad it is from the dissent by Tashima. The majority affirmed the conviction for providing material support for terrorists and false statements. It did so in the face of possible foreperson misconduct ("they are all alike," statements about better to convict an innocent that risk an attack, and calling an alternate), curtailing an expert witness, and barring an exculpatory statement because the defense counsel failed to argue a correct hearsay exception. According to the majority, it could not be proved, absolutely, that at the time of the jury deliberations, the foreperson was biased. Sure these statements were questionable, but when he was questioned, he said that he was unbiased, and the court gave great deference to the district court. The majority also held that the district court did not err in admitting expert testimony about the implications of an Arabic note, while was within its discretion in barring a defense expert as being unqualified. Finally, a defense statement was properly excluded as the basis for its admission was not argued. Dissenting, Tashima, as indicated above, believes that the trial was unfair, and should be reversed.

Knight v. Ahlin, No. 10-56211 (3-13-13)(Per curiam with Goodwin, Kleinfeld, Silverman)
The petitioner, a convicted rapist, was scheduled to be released from state prison. Just before, the state moved for his civil commitment as a sexually violent predator. This was in 2004. The petitioner was held...and held...and held so more. Defense counsel kept continuing the trial, and the state never pushed for it. The petitioner kept asking for a trial. Eventually, the petitioner went to federal court. Stop, argued the state, because the Younger doctrine barred the federal courts from interfering. No, said the 9th, Younger does not apply because the state proceeding must be ongoing. This definitely was not ongoing. The petition is granted.

Congratulations to Matt Larson, Deputy Federal Defender, Cen. Calif. (Los Angeles).
U.S. v. Alvirez, Jr., No. 11-10244 (3-14-13)(Rawlinson with Nelson and Ikuta)
The 9th reverses a conviction for an aggravated assault arising out of Indian Country jurisdiction because the court abused its discretion in admitting an unauthorized Certificate of Indian Blood. The document was not self-authenticating, as tribes are not listed as a sovereign that can self authenticate under the rule, and the witness did not recognize or had knowledge of the Certificate. The case is remanded. the 9th also found, in case of retrial, that the defendant could still mount a challenge to the conviction and that the court's warning that he might open the door to admission of a polygraph session was not a bar or too chilling.

Congratulations to AFPD Dan Kaplan of the D. Arizona (Phoenix).

Milke v. Ryan, No. 07-99001 (3-14-13)(Kozinski with Farris and Bea)
Lies and mendacity. That would be the motto of a Police Detective in Phoenix who wrung a confession out of petitioner, for supposedly arranging for the murder of her son. She denied it, and said she invoked. The trial was a swearing match. Unbeknownst to the defense team, the detective had a record of lying, been disciplined for lying, and was the subject of court orders about lying. The State did not turn the material over. The 9th, aghast (and pretty egregious for this panel) found a clear violation of Brady and Giglio. The state courts seemingly missed this (an implication that the state post-conviction exhibits were not read), and the decision ran counter to clearly established federal constitutional law.  AEDPA did not bar.  The denial is reversed, and the case remanded with instructions regarding hearings and conditional granting of the writ. The panel also is sending a copy of the opinion to the US Attorney to see if federal laws had been violated. Kozinski concurred, finding also that Miranda had been violated and that the so-called confession should not have been allowed.


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