As far as I am aware, liberal 9th Circuit judge Stephen Reinhardt has still never upheld a single death verdict in almost 30 years on the bench. The Supreme Court yesterday reversed Reinhardt 9-0, and as Orin Kerr reported, it was the third reversal in the same case:
The basic dynamic of Ninth Circuit “liberal lion” Stephen Reinhardt overturning a death sentence in a habeas case – and then the U.S. Supreme Court reversing Reinhardt — happens so often that it normally would not merit comment. But here’s a slight twist: Today the Supreme Court reversed Reinhardt for the third time in the same case, that of Fernando Belmontes, Jr.
The best part is the way Reinhardt’s opinions about the evidence changed from one appeal to the next. This is evident from the following quote from yesterday’s opinion:
On remand from this Court, the Court of Appeals—addressing Belmontes’ ineffective assistance claim for the first time—changed its view of this evidence. Instead of finding Schick’s mitigation case “substantial,” as it previously had, Belmontes, 350 F. 3d, at 907, the Ninth Circuit this time around labeled it “cursory,” Belmontes, 529 F. 3d, at 841, 861, n. 14, 866. Compare also Belmontes, 350 F. 3d, at 874, 901, 907 (labeling the mitigation evidence Schick presented “substantial”), with Belmontes, 529 F. 3d, at 847, n. 3, 874 (labeling the same evidence “insubstantial”).
Reinhardt wrote both opinions.
What accounts for this difference? In the earlier opinion, finding ineffective assistance of counsel had not been necessary to reverse the case — so it was OK to describe counsel’s efforts as “substantial.” The second Reinhardt needed to argue that counsel had been ineffective, the “substantial evidence” all of a sudden became “insubstantial” and “cursory.”
That’s how you do it when you are bound and determined never to uphold a death sentence. You say what you want to say, and the truth can pretty much go to hell.