Reinhardt Vacates Yet Another Death Verdict in an Astoundingly Dishonest Opinion
In 2004, Ninth Circuit Judge Stephen Reinhardt admitted that out of twelve death cases he had heard, he had voted against death in every single one. Although I can’t confirm it, I believe his streak holds to this day. I know of only one decision (not including today’s) since that time, and Reinhardt voted against death there too.
Reinhardt claims that in every such decision, he has simply followed the law. It just so happens that in more than 25 years as a federal appellate judge, he has never seen a single case where the law justifies death.
I believe Rose Bird made similar arguments — before her recall. (Of course, federal judges can’t be recalled.)
Reinhardt continues his streak in a particularly dishonest decision issued today, claiming ineffective assistance of counsel by a Los Angeles defense lawyer. Anyone with the slightest familiarity with the way the criminal justice system works can easily see through Reinhardt’s ridiculous arguments.
I hope that this case is appealed to the United States Supreme Court. If it is, I have utter confidence that it will be summarily reversed. The only question is whether the High Court finds it worth its while to take a case involving an utter distortion of the law relating to ineffective assistance of counsel.
Details in the extended entry.
Full disclosure: the allegedly deficient lawyer was John Cheroske, who is currently the presiding judge of the Compton Courthouse, where I have worked for the last 2 1/2 years. I was Judge Cheroske’s calendar D.A. for several months, and I appear in his courtroom regularly. I will be appearing there again on Friday.
You have my word that if I did have something bad to say about Judge Cheroske — and I don’t — I wouldn’t lie to you. I would just skip writing this post, and you’d never be the wiser. But since I have nothing bad to say about him, I feel perfectly comfortable writing this post.
I haven’t ever talked to Judge Cheroske about this case. I never even heard of it until today.
When you read the post, you’ll see the facts speak for themselves anyway.
Here’s the essence of the case: Cheroske tried to mount a reasonable doubt defense for a murder defendant. He lost. Now the Ninth Circuit is second-guessing his performance, which the law prohibits.
The facts establishing the defendant’s guilt were overwhelming.
Defendant was a cashier at a restaurant at LAX. The murder victim was his supervisor. On the night of the murder, defendant was seen at the restaurant 20 minutes before the victim was last seen alive — 30 minutes after the defendant’s shift was up.
Victim was stabbed and killed in a robbery/murder involving two knives.
Three months later, there was a second robbery. Money was again stolen from the money room, and $300 was taken from the defendant’s cashier bank. Defendant was arrested, and a duplicate key to the cash box was found in the defendant’s car.
His prints were taken. They matched bloody palm prints and a bloody fingerprint that had been found in the money room where the victim had been killed three months earlier. Bloody shoe prints matched shoes belonging to the defendant.
Despite this evidence of guilt, Cheroske shot for the acquittal. Defendants charged with murder, even in death cases, typically try to get acquitted, rather than admitting guilt and shooting for life in prison.
Defendants tend to shoot for the acquittal even when they’re clearly guilty. It’s the weirdest thing: defendants don’t like to go to prison for the rest of their lives. They tend to try to fight that sort of thing.
So Cheroske tried to get his client acquitted and lost. Today, the Ninth Circuit played a big game of second-guessing his performance — exactly what appellate courts are not supposed to do. Reinhardt says that Cheroske should have presented an accomplice defense, which would have required him to concede his client was there for the murder, but didn’t actually do the killing.
Just a touch of law for the non-lawyers. I’ll keep it to one paragraph. “I woulda done it different” is not the standard for ineffective assistance of counsel. “Knowing what I know now, I woulda done it different” is even further from the standard. The Supreme Court has told the Courts of Appeal numerous times that they are to defer to reasonable strategic decisions made by defense counsel, and not criticize their performance with the benefit of hindsight. Counsel must be so deficient that no reasonable attorney could have made the same decisions.
Cheroske is faulted because there was possible blood evidence at the scene that didn’t belong to the victim. I say “possible blood evidence” because it wasn’t even certain that it was blood.
Cheroske didn’t ask for that blood to be compared to his client’s blood, for a damned good reason: his client had admitted to him that he had been in the money room. Cheroske was understandably worried that, if he asked for the other possible blood to be tested against his client’s blood, he ran the risk that there would be a match. He didn’t want to run that risk.
Defense lawyers are entitled to reasonably rely on things their clients tell them in deciding what investigation to conduct — a legal principle which the lower court judge gave considerable weight court, but which Reinhardt gives little weight.
So he did what defense lawyers do, every day, across the country. He said that the prosecution bears the burden of proof, and elicited evidence that the prosecution hadn’t bothered to take steps to tie the defendant to the crime. Namely, the prosecution had not tried to test this possible blood evidence against his client.
Sounds like possible reasonable doubt to me!
Here’s where I started getting mad:
When Cheroske cross-examined Matheson, his lack of preparation was evident. At the outset, he said to Matheson: “[Y]ou lost me . . . when you’ve been talking about all of these numbers.”
Are you kidding me?
Are you [several expletives deleted] KIDDING ME?!?!?
That’s a standard trial lawyer attorney tactic: to approach the expert and act like he’s not making any sense. If the attorney thinks a scientific expert might have lost the jury with a technical explanation — especially one involving numbers — it’s a completely standard tactic to exploit that by feigning confusion, and thus (hopefully) aligning himself with the jurors, who (the attorney hopes) might be similarly confused.
And it gets worse.
Reinhardt goes on to portray one of Cheroske’s major defense arguments — that the defense didn’t even bother to try to tie the non-victim blood to his client — as a “damaging issue to the defense”:
Moreover, [Cheroske’s] line of questioning highlighted what turned out to be a damaging issue to the defense. Cheroske asked Matheson: “Now, taking Number 10 first, if you were given a whole blood sample from someone else, let’s say this man over here, Mr. Henry Duncan [the defendant], could you analyze it and tell if they are different types?” Matheson replied that he could have done so. Cheroske then asked Matheson twice whether he had compared the blood found at the scene with any other whole blood samples besides the victim’s. Matheson replied that he had not been given any other blood samples besides the victim’s.
Note that Cheroske has just established that the prosecution — which, you might recall, bears the burden of proof — didn’t bother to test possible non-victim blood at the crime scene against the defendant’s blood.
Sounds like possible reasonable doubt to me!
Cheroske understandably believed that if he had tested the blood himself, it would only have served to tie his client in to the scene even further. After all, his client admitted to him that he had been inside the small room where the victim had been killed. There were bloody prints tying his client to the room. And a detective testified that, while two assailants could have fit in the room, he thought it more likely that there was only one based on the size of the room.
Reinhardt says that it would not have posed a risk to the defense to have the blood tested. We don’t know that. It takes time for the defense to run such tests, which often result in a delay of the trial. If a trial is delayed when there is a clear gaping hole in the evidence, the prosecution might take steps to remove the gaping hole. It is too easy an assumption to make to say that Cheroske should have had the blood independently tested.
Reinhardt acts as though the benefit of showing there might have been an accomplice would obviously have saved the defendant from the death penalty — except that there were two knives involved in the attack. And, again, Cheroske’s client had admitted being in the room. (He also denied the murder, but defense attorneys know that guilty people deny the crime to their lawyers all the time. He had bloody prints in the room. Of course he was in the room!)
Cheroske made an effective argument that the prosecution had left out critical evidence, and the prosecution, on its heels, argued in rebuttal that Cheroske could have had the items tested himself. Reinhardt describes this as the prosecutor turning the argument to his advantage — as if it was actually better for the prosecution that Cheroske brought up the point that the prosecution hadn’t bothered to try to tie the blood to his client.
Oh, and did I mention that the defendant refused to have his blood tested? But, Reinhardt says, Cheroske should have then checked medical records to see if they showed his client’s blood type. (Reinhardt doesn’t say that habeas counsel did so, or what the records revealed.)
Cheroske presented evidence that other people might have been the perpetrator:
Cheroske presented circumstantial evidence that a number of suspicious individuals had been seen near the restaurant on the night of the murder. He attempted to show that the perpetrator must have been an “outsider,” rather than an employee [like the defendant], by presenting evidence that the victim was tortured before her death, presumably in an attempt to get her to open a Brink’s safe located inside the money room. He argued that the murderer must not have known, as an employee such as [defendant] Duncan must have, that [victim] DeBaun could not open the safe without a second key that only the Brink’s guard possessed.
Reinhardt discounts this because the safe had a sign on the front that said it could be opened only by Brink’s. But someone who worked there every day would certainly know that; a stranger in the middle of a robbery might miss it.
Presenting an accomplice theory would require Cheroske to either: 1) concede during the guilt phase that his client was there, thus assuring his conviction, or 2) defend the guilt phase on the theory that his client was innocent, and defend the penalty phase on a wholly inconsistent theory that he was. How was Cheroske supposed to present this argument and maintain his credibility with the jury? And was he required to remove any lingering doubt as to whether his client had been there?
Cheroske was not a magician. He did not pull a rabbit out of a hat. And that, for Reinhardt, is enough.
And so, even after a dozen jurors concluded unanimously that the defendant was guilty and deserved death, we see a reversal — for basically no good reason other than that the case was assigned to the Ninth Circuit’s most notorious liberal judge, together with a couple of other other silly liberal judges (two Clinton-appointed judges named Richard Paez and Ronald Gould).
I could go on and on and on and on about how ridiculous this opinion was.
Basically, you have a defense attorney — who later not only made judge, but somehow made it to the top of the bench in one of Los Angeles’s most crime-ridden areas — who made reasonable decisions to exploit the prosecution’s failures in a case where his client was dead to rights, and admitted as much to him. And some liberal judge who has never upheld a death verdict in his 25+ years on the bench decides that this lawyer didn’t do things precisely the way that the liberal judge, in hindsight, would have done things — and adopted a defense that would have lost him credibility with the jury, and would have required him to basically give up any chance of an acquittal.
The death penalty is becoming an increasing joke in this country, because of ideologues like Reinhardt. He just hopes that the Supreme Court doesn’t have time to reverse every outrageous decision he makes.
I hope he’s wrong.
UPDATE: I have added several passages to the post to clarify the argument. Taking my cue from JRM, I noted that something I had previously called a standard “defense attorney tactic” is really a standard “trial lawyer tactic” — and I have changed language accordingly.
I want you to note this well. In comments, “assistant devil’s advocate” says:
i am pro-death penalty, but if you want me to vote to kill someone on account of a robbery/murder which left a small room full of bloodspatters, you damn well better type the defendant’s blood and enter it into evidence.
That is exactly the sort of attitude that Cheroske was counting on at least one of the jurors having.
And you’re telling me that it was deficient performance to recognize that hole in the case and try to exploit it?
Very good analysis of why defense lawyers often do not ask certain questions—they know the likely outcome will be bad, and that is a sign of a competant defense.
Cyrus Sanai
Cyrus Sanai (4df861) — 6/26/2008 @ 12:11 amtwo troubling items in the opinion’s factual recitation:
1. the fingerprint error. defendant duncan’s fingerprints were found not to match after the first robbery. after the second robbery they were taken again and found to match. the lapd fingerprint expert explained that there had been an error in taking duncan’s left index print after the first robbery, so no match could have been made then. i don’t understand how this error could have been made. here in oregon we have our own poster boy for fingerprint errors, brandon mayfield, a lawyer/convert to islam who was briefly implicated in the al-qaeda madrid train bombings, until the fbi was forced to admit it erred in matching his prints to the evidence. there’s no room for such errors in capital litigation.
2. duncan’s blood type was unknown at the time of the trial because the prosecution didn’t bother to test it either, perhaps because they were equally afraid of the results. blood samples can be compelled, it isn’t considered self-incrimination. no negative inferences can be drawn from the defense’s failure to put on evidence, but the same privilege doesn’t apply to the prosecution. i am pro-death penalty, but if you want me to vote to kill someone on account of a robbery/murder which left a small room full of bloodspatters, you damn well better type the defendant’s blood and enter it into evidence.
the conviction was left standing, only the special circumstance and the sentence were reversed. maybe you should take your conviction and be happy he wasn’t acquitted.
assistant devil's advocate (98252c) — 6/26/2008 @ 1:50 amYou left out several annoying facts. The murder took place on November 13, 1984. He was convicted on March 3, 1986.
The defendant previously had a direct appeal to the California Supreme Court. That court also denied his writ of habeas corpus on the merits. The U.S. District Court in Los Angeles heard 4 days of evidence and denied the defendant’s federal writ of habeas corpus.
As a competent defense attorney, Cheroske sat back and waited for the prosecutor come to trial without critical evidence.
Cheroske made reasonable strategic decisions and then argued reasonable doubt. The jury saw through the smoke and mirrors and convicted his client.
Why doesn’t the California Attorney General ask for a rehearing enbanc with the 9th Circuit?
slp (bb9822) — 6/26/2008 @ 2:42 amYou state that Federal Judges cannot be recalled.
Paul Albers (0c58f4) — 6/26/2008 @ 2:59 amTrue as far as it goes.
IMPEACHMENT is possible and for many of these judges it is way overdue.
If Republicans were smart, it would be in their platform.
Any judge who has been a member of the ACLU ought to be disqualified for any judicial office or prosecutorial office, period!
PCD (5c49b0) — 6/26/2008 @ 5:03 amADA –
I’ve taken some crime-scene classes (I jokingly refer to them as my “How To Commit Crime” classes), and the person the instructor brought in to teach us fingerprinting and such worked (maybe still works, I dunno) for the State Crim Lab in Illinois. This guy, who had seriously over a decade-worth of experiance, told us how easy it it to flub taking ink prints.
I’m not shocked that an error was made in the first finger-printing. It’s hard to do with a fully co-operitive person, let alone someone who might have something to hide…
Scott Jacobs (fa5e57) — 6/26/2008 @ 5:18 amWhat ada is saying is that counsel’s conduct during the trial (whether defense or prosecution) is viewed against the totality of the evidence for material prejudice to the defendant. The stronger the State’s case, the less likely the court is to find that the “error” would have affected the outcome.
nk (11c9c1) — 6/26/2008 @ 6:03 amIt’s also useful on the prosecution side.
Defense expert: And, we can tell that the defendant’s blood had .03% blood alcohol rather than .12% blood alcohol.
One way to combat this is:
Prosecutor: Which is it – are you a liar or an idiot?
But this isn’t effective, even if correct. Instead:
Prosecutor: Gosh, you lost me there with all those numbers. Help me figure out where I went wrong. (Run through each calculation until expert changes assumptions.)
So I’m even further out than Pat that the “You lost me there,” comments can certainly be used in a lot of totally appropriate ways. That’s a staggering lack of comprehension of really ordinary trial tactics.
–JRM
JRM (355c21) — 6/26/2008 @ 6:15 amI should call it a standard trial lawyer tactic. I’ll fix it.
Patterico (cb443b) — 6/26/2008 @ 6:16 amI’ve updated to note ada’s and JRM’s excellent comments.
Patterico (cb443b) — 6/26/2008 @ 6:18 am“Cheroske didn’t ask for that blood to be compared to his client’s blood, for a damned good reason: his client had admitted to him that he had been in the money room. Cheroske was understandably worried that, if he asked for the other possible blood to be tested against his client’s blood, he ran the risk that there would be a match. He didn’t want to run that risk.”
This is the part I either don’t understand, or I disagree with, but I have never been involved in a criminal trial. What was the risk?
If it was a match with his client, he didn’t have to share it with the prosecution or enter it into evidence. Reinhardt goes over this on pages 26-27 of the PDF. Cheroske could have done the test and either gathered evidence that would have indicated another person and thus made the finding of special circumstance much less likely (good) or found a match with his client (irrelevant because it wouldn’t be introduced at trial).
He summarizes on page 29 of the PDF:
All of his stated reasons amount to a fear that the
blood samples found at the scene would be consistent with
Duncan’s blood. This fear was unwarranted for two reasons.
First, blood cannot be directly tied to its donor through blood
typing, which Cheroske would have known had he consulted
a serology expert. Thus, even if the blood samples were con-
sistent with Duncan’s blood type, there would have been no
way to prove that they came from him, unlike the fingerprint
and palm prints that were lifted from the crime scene and con-
clusively proved that Duncan was present. Second, Cheroske
could have tested Duncan’s blood without the knowledge of
the prosecutor and, once he knew the results, he could have
made a strategic decision about how to deal with the blood
evidence at trial. Cheroske’s failure to consult a serology
expert and determine Duncan’s blood type when he was on
notice of the existence of potentially exculpatory blood evi-
dence was unreasonable under prevailing professional norms
and constitutes deficient performance under Strickland.
What is wrong with this quote? If there was no risk to taking the test, and there was an obvious possible benefit at the penalty phase, how would a reasonable lawyer fail to take the test?
I’m not arguing, I’m asking. Reinhardt’s reasoning seems pretty solid to me, but I’m not a criminal lawyer.
Aplomb (c2286c) — 6/26/2008 @ 6:43 amI have fixed the post to address that. There was a big hole in the prosecution case, and engaging an expert might have given the prosecution time to plug that hole.
Patterico (cb443b) — 6/26/2008 @ 6:45 amQuick question:
E. E. Grimshaw (30e19c) — 6/26/2008 @ 7:06 amAre you saying that when the victim was murdered, that there was a “first” robbery? That’s the assumption I made, but I just wanted to know what actually happened on the night in question.
I wrote the post quickly and didn’t have time to polish it. I have had to substantially revise it this morning. I added a line to explain that, yes, there was a first robbery and that’s when the murder occurred.
Patterico (cb443b) — 6/26/2008 @ 7:11 amPatterico–
Obviously the counsel was ineffective; the defendant was convicted. Applying this test it is not hard to overturn all death penalty cases while “just following the law.”
Kevin Murphy (0b2493) — 6/26/2008 @ 9:13 amThis 9th Circuit Panel said,
Perhaps Cheroske did secretly do the blood typing test and obtained results which would incriminate his client, or perhaps Cheroske otherwise knew that the blood in the murder room would match his client’s blood. If that were the case, would the 9th Circuit ever know about it?
Ira (5a8831) — 6/26/2008 @ 9:15 amWell, since the defense doesn’t have to turn over incriminating evidence, I’d say it could have happened…
But I doubt it. He’d have had to ask for a sample to test, and then the state likely would have tested as well…
Scott Jacobs (fa5e57) — 6/26/2008 @ 9:23 amJudges who make decisions based on personal opinions and not the law should not be judges, but they can be (and always are) idiots and democrats.
Scrapiron (c36902) — 6/26/2008 @ 11:32 amReinhardt claims that in every such decision, he has simply followed the law. It just so happens that in more than 25 years as a federal appellate judge, he has never seen a single case where the law justifies death.
I believe Rose Bird made similar arguments — before her recall. (Of course, federal judges can’t be recalled.)
Many years ago, in a KRON-TV (San Francisco) retrospective, I saw old black & white news footage (circa late 1960’s) of a young fellow named Edmund G. Brown Jr. protesting an execution outside the death house at San Quentin, and he remarked to a reporter that the movement he was part of would bring the death penalty to an end someday.
BTW, for the under 30’s here: Edmund G. Brown Jr. is better known as Jerry “Governor Moonbeam” Brown, the man who followed Ronald Reagan as Governor of California. Brown is currently Attorney General of the state, and it is suggested his half-hearted effort on behalf of the People of California resulted in the In re Marriage Cases decision legalizing same-sex marriage in the state.
Brown was true to his word – upon being given the power to appoint state justices as Governor, he chose Rose Bird to be Chief of the California Supreme Court, and packed the bench with jurists who shared his view on capital punishment, i.e. there is always a reason to say “no.”
Something to think about.
L.N. Smithee (a0b21b) — 6/26/2008 @ 11:59 amThe bottom line here is that Reinhardt is going to find any reason possible to overturn a death sentence. It is that simple. I am going to check out Judge Paez’s voting record also on death cases. He voted with Reinhardt on Belmontes a couple of weeks ago for a 3rd time to vacate the death sentence after 2 remands from SCOTUS. Hopefully, the 9th Circuit will hear this en banc and reverse.
DaveP (d8725c) — 6/26/2008 @ 12:35 pmThe more cases like this I hear about, the more convinced I am that we should just abolish the death penalty. While I can see that there are things that the defense might have done, they mostly seem to fall into “proving innocence”, and that’s not required. What shocks me about this is that the entire conviction was not overturned. I can see how there was probable cause to try the defendant, but I don’t understand how he was convicted.
Probably a good thing I’m not a lawyer.
htom (412a17) — 6/26/2008 @ 1:19 pmIf the other branches of govt refuse to reign in the judiciary, then it is up to the people. And by 5-4, the SCOTUS upheld the right to possess the required tools.
martin (0bd3dd) — 6/26/2008 @ 3:06 pmI haven’t read all of the comments, so this may be upthread:
Cheroske was damned if he did, and damned if he didn’t, regarding testing the blood. Had he had it tested, and it matched (as it likely would have), Reinhardt may have used that as evidence of ineffective assistance of counsel. (Why tie your client to the murder scene?) Obviously, not having it tested is also problematic.
Sad that Judge Reinhardt smeared the name of a man who is, by all accounts, very able and careful in his lawyering in an attempt to avoid the death penalty.
bridget (add3eb) — 6/26/2008 @ 3:38 pmBecause he is Jerry Brown. He can just sit back and say, “Too bad. We lost another one because of those damn incompetent defense lawyers.”
slp (1d7c03) — 6/26/2008 @ 7:45 pmI don’t see how blood typing (even dna testing) would have any significant use when the evidence includes bloody fingerprints and palmprints that match this defendant.
Even in the best case, the blood might be shown to include someone else, but that would indicate an accomplice, not innocence for this defendant.
This Rheinhardt needs impeachment, as there are many other egregious cases to add to this one, such as the Harris case (iirc).
Ken from Camarillo (aa2192) — 6/26/2008 @ 11:27 pm