Patterico's Pontifications


Reinhardt Reversed 9-0 on Death Case; Supreme Court Catches Him Dissembling

Filed under: General — Patterico @ 6:51 am

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.

52 Responses to “Reinhardt Reversed 9-0 on Death Case; Supreme Court Catches Him Dissembling”

  1. Supreme Court to Reinhardt: “You lie!”

    Alta Bob (e8af2b)

  2. i was under the impression that judges could be removed for actions such as this…..

    redc1c4 (fb8750)

  3. Only by impeachment process. It’s a shame — the Founders screwed up on this one. And they should have known better with a long history of corrupt British courts to guide them.

    Or maybe Madison screwed up when he did not walk over to the Supreme Court building, dragged Marshall out into the street, and rawhided him, after the Marbury decision.

    nk (df76d4)

  4. Maybe Obama will transfer him to New York so he can help KSM with discovery

    SteveG (97b6b9)

  5. Why has not Congress impeached any judge for making the wrong ruling?

    Michael Ejercito (6a1582)

  6. In interviews several years ago, Reinhardt was unapologetic for his repeated efforts to undermine the application of the death penalty. He’s the 9th Cir.’s answer to Rose Bird. While the Supreme Court may create avenues in the law to the use of capital punishment, Reinhardt has consistently used factual arguments to undermine it’s use. He couldn’t care less that the Supreme Court has called him out in this manner. He’s never getting off the 9th Cir. and he knows that. He’s never going to retire, and I doubt he’ll ever take senior status as that would substantially reduce the number of panels to which he is assigned.

    Voters should keep him in mind, however, when thinking about Presidential elections. Reinhardt was put on the 9th Cir. by Jimmy Carter in 1978. Obama is beginning to sprinkle new Reinhardts across the federal appellate courts. Clinton’s appointees are going to look downright conservative in comparison.

    WLS Shipwrecked (3d3fb8)

  7. Why has not Congress impeached any judge for making the wrong ruling?

    Comment by Michael Ejercito — 11/17/2009 @ 7:32 am

    It’s almost impossible to impeach the !#$%%^&s for taking bribes.

    nk (df76d4)

  8. Yeah, and when you do, they just run for, and get elected to…..

    AD - RtR/OS! (138fbd)

  9. Uh, do ya think that might fly in both directions?
    Scalia says it’s OK to execute an innocent person because, well, he’s always going to vote for the death penalty.

    Larry Reilly (45c8f2)

  10. Larry, no one really believes you about Scalia. You’re some kind of nut. Scalia has often proven to be principled and honest.

    But yeah, this COULD fly in both directions. If a conservative did what a liberal did, though, I know the right would condemn the kind of crap the left laughs off.

    Your hypo proves why you are so, so wrong.

    Dustin (bb61e3)

  11. Larry, Where’s your cite of Scalia saying that? Oh, and the voices in your head is not a valid citation.

    PCD (1d8b6d)

  12. The press gave Kozinksi 100000X the attention for telling naughty jokes than they will give this judge for repeatedly refusing to be impartial and administer the law. We have him lying to the supreme court, here, essentially. He did not think the evidence was both substantial an insubstantial, so he’s lied.

    Can we take up a collection and pay that fella (can’t recall his name) to harass the right circuit judge?

    Perhaps we do not need judges to be politicians, but this is pure tyranny, and a difference system is needed. A petition where the governors of circuit can agree, unanimously, to remove a circuit jurist? Something very tough to get, but possible.

    Dustin (bb61e3)

  13. Reinhardt was sort of a leading indicator of the fate of California. His wife is (or was) head of the ACLU. They embody the limousine liberal mindset that has wrecked this state. It looks like New York is going down the same way soon.

    Mike K (2cf494)

  14. Ramona Ripston IS from New York….
    (H/T SoCal ACLU)
    “…majored in Political Science at Hunter College in New York…”

    AD - RtR/OS! (138fbd)

  15. Can we take up a collection and pay that fella (can’t recall his name) to harass the right circuit judge?
    Comment by Dustin — 11/17/2009 @ 9:08 am

    I’m pretty sure I read that Reinhardt called CYRUS SANAI a poopy-head and said that CYRUS SANAI was wrong about something. There may also be a report that Reinhardt picked up a quarter that CYRUS SANAI had dropped… and kept it for himself. Reinhardt also may have typed out a dirty joke on his personal computer about a nun, CYRUS SANAI, and a penguin walking into a bar. Though all these reports are not substantiated, I’m sure CYRUS SANAI could determine the facts of the matter and proceed accordingly.

    (Dustin, why on Earth would you want to pay him?) 😉

    Stashiu3 (44da70)

  16. Scalia was obeying a law in place since the Revolution, and much older than that in Anglo-Saxon law. That law has changed and actual innocence is now a means of reversing a conviction.

    nk (df76d4)

  17. Why would a nun and a penguin be in the company of CYRUS SANAI, let alone go into a bar with him?

    AD - RtR/OS! (138fbd)

  18. Scalia was obeying a law in place since the Revolution, and much older than that in Anglo-Saxon law. That law has changed and actual innocence is now a means of reversing a conviction.

    This is true.

    A law can not be judically struck down simply because it is defective.

    Michael Ejercito (6a1582)

  19. Voters should keep him in mind, however, when thinking about Presidential elections. Reinhardt was put on the 9th Cir. by Jimmy Carter in 1978. Obama is beginning to sprinkle new Reinhardts across the federal appellate courts. Clinton’s appointees are going to look downright conservative in comparison.

    Comment by WLS Shipwrecked — 11/17/2009 @ 7:52 am

    Amen, bro.

    And nobody should say they are surprised by how far left Obama’s SCOTUS appointees will prove to be in the future. Before making known his Presidential asperations, he explicitly said in a public radio station interview that he viewed the Constitution’s omission of what government MUST do for you a flaw, and the shame that “redistributive change” was unlikely in the near future.

    That was back when he had no power. Now, he’s got all of it. And his first order of business: Installing Sonia Sotomayor, whose college yearbook quote was from Norman Thomas.

    L.N. Smithee (b048eb)

  20. Let me guess, “I am not the champion of lost causes, but the champion of causes not yet won.”

    ropelight (466343)

  21. This goes well beyond “judicial activism.” Judicial activism is not a good thing, but a practice generally embraced by Democrats, meaning more or less half the country. In general it can be described as the efforts undertaken by certain judges to seize power for the judicial branch by making broad policy decisions on issues historically and properly decided by the two more representative branches of government (legislative and executive), through a process typically characterized by finding “rights” unmentioned in, and wholly untethered to, the Constitution, statutes, and treaties of the U.S. Judicial activism can, but need not, be motivated by overt political views. The preeminent example of judicial activism is Roe v. Wade. Reinhardt is indeed a judicial activist, but so too are half, more or less, of the judges on the Ninth Circuit and indeed on all U.S. courts. A blog post entitled “Reinhardt’s latest ruling confirms that yep, he’s still a judicial activist” would be a dog-bites-man story.

    But Judge Reinhardt isn’t just being a judicial activist here. He is, as Patterico quotes the latest SCOTUS opinion in demonstrating, becoming a liar in a written opinion justifying a particular result in a controversial and important case. His main job under the Constitution is to decide cases and explain the reasoning for those decisions (including a discussion of the relevant facts). And on the most important facts, he’s been using his power to write appellate decisions in order to lie to the entire world about what is or isn’t in the written record from the trial court level.

    I think judicial activism is a mistake, but I nonetheless concede that it’s something about which reasonable people of stipulated goodwill and patriotism can and do disagree.

    But a circuit judge who’s a demonstrated liar — well, that ought not be something about which reasonable people could disagree. Anyone of any political persuasion, of any view on the death penalty, or of any view about judicial activism ought to be able to agree that lying in order to justify a particular outcome in an appellate decision is a categorically bad thing that should be condemned.

    I suspect there are partisans of Judge Reinholdt who might privately tsk-tsk, and who might concede that he’s perhaps been a bit fast and loose as he’s “played the game” with the SCOTUS.

    But I do not hold my breath waiting for the Dems of the House Judiciary Committee, for example, to investigate this, much less to issue a censure or commence impeachment proceedings.

    Beldar (5950e0)

  22. Dear Stephen,

    Sympathize with the goal, but you’re being too obvious. No, we “can’t catch them all,” but we’re typically going to catch all of your stunts that involve the same multiply-remanded case.

    Love to Ramona,


    Mitch (890cbf)

  23. Just a note….
    Lynn Stewart’s conviction has been affirmed by the Circuit Court, her bail revoked, and the case remanded for resentancing since the panel felt the 28-month sentance was insufficient.
    She is to surrender, or be taken into custody, immediately.
    Oh, Happy Days!

    AD - RtR/OS! (138fbd)

  24. A long-awaited result. The surprise was the ruling that the sentence was too lenient.

    BTW, anyone know what sentences her co-conspirators got?

    Robert N. (070cb0)

  25. Does the SC in its supervisory role have no power such as would allow it to remand but exclude Reinholdt from participating?

    Why is it we only ever have Rule of a Man (v. Rule of Law) when a liberal decides that his or her own moral goodness trumps everyone else’s obvious venality or willing ignorance?

    We spent the last fifty years making sure – on the liberals’ motion – that we had removed all instances of discretion from judges’ roles, in order to guarantee that cracker southron judges couldn’t continue tormenting blacks or women or crack smokers.

    On top of that, we made certain – again, primarily in service to a liberal desire to stop the evil pigs from tormenting criminals everyone not part of the power structure – that cops have very little room for exercising their own judgment – their discretion – in their duties.

    “Equal” protection has reached, in some instances, absurd positions that no longer reflect reality, but the primary motive power for these efforts has always been delivered through the drafting of all-encompassing and intricate rules for every situation which allow for no variance, for no allowance for factors not set out in the rules, and which turn many judges iinto guidelines calculators.

    And they – liberals – did all of this in order to guard against the Rule of a Man. They did this so that in every situation, there would be an applicable Rule of Law just waiting to be found in WL and printed out by a law clerk and handed to a judge for delivery to the parties.

    And they applaud the Reinholdts.

    I can’t tell if they’re so megadeath on improper process because they truly believe that justice should be blind and impartial (and they simply keep forgetting about the concept whenever they get all emotionally whipped up by a correct-thinking “leader” who’s unwilling to be constrained and denied by the artificial strictures of Other Peoples’ Lives), or if it’s because they know we’re more anal-retentive about the whole social compact thing, (and thus we’ll stick by the guidelines and not use the liberals’ deviations from their own rules as an excuse to break them ourselves.)

    bobby b (4baf73)

  26. The answer is quite simple really, bobby b…
    The “general store” doesn’t sell tar & feathers anymore.

    AD - RtR/OS! (138fbd)

  27. Reinhardt highlights a weakness in the tri-partite ‘balance’ scheme. Neither the executive nor the electorate holds the power to levy consequences on the miscreants. The legislature has the power, but lacks the will.

    OTOH, I’m really really leery of any scheme which would destroy (or merely limit) the independence of the judiciary as a whole. The difficulty lies in identifying the rotten apples without losing the whole barrel.

    The ideal answer is, of course, finding Presidents who will not appoint and Senators who will not consent to persons who believe their political objectives justify their judicial behaviors. Finding such an Executive and Senate requires an alert, educated, and discerning electorate.

    Which means the Reinhardts will continue to enjoy a consequence free launching pad for their personal agenda.

    Robert N. (070cb0)

  28. Robert N, I disagree. it’s not possible to avoid every activist judge just by having a very careful selection process. We need a better way to get rid of crappy judges.

    If all the governors in a district want a jurist out, they should be able to kick him out. I think that would have happened to Reinhardt because he’s clearly lying to the Court. It would not happen to merely liberal or somewhat oddball judges, though.

    Dustin (bb61e3)

  29. These problems will all be ameliorated under Shariah.

    AD - RtR/OS! (138fbd)

  30. With judges like this moron, California should go ahead and do away with the death penalty. If you are not going to effectively use it then all it does is serve as welfare for lawyers.

    Largebill (1d1579)

  31. Dustin – you are talking about setting up some new investigative panel empowered to levy consequences upon those who fall outside the ‘norm’ as defined by the panel.(No such tool exists in the current scheme.)

    The fact that Reinhardt acts as he does without consequence enrages us – but imagine the scenario when Reinhardt clones control the selection of the panel, have the power to define what is acceptable conduct, and have the mandate to punish judges who do not sing on key, on command, or march in ranks and remain in step.

    The freedom of mavericks to act as mavericks is vital to the health of the system. That some mavericks act outside the bounds of what we see as their oaths should not be reason to hobble the entire system. That is, after all, the argument used for taking away the private ownership of firearms. Some people might (in fact do) abuse the system, therefore take away everyone’s ability to do so.

    Robert N. (070cb0)

  32. Largebill – The problem for Californians is that they have no say in his behavior. He is on the Federal Ninth District court. Were he a Calif. Appellate jurist he would be subject to the Rose Bird option.

    Robert N. (070cb0)

  33. Hmmm. If liberals succeed in forcing pro-life doctors and nurses to participate in abortion (see yesterday’s discussion), do you think we can insist that Judge Reinhardt be the one to give the lethal injection?

    JVW (d32e06)

  34. This is a great example of judicial nullification, the tradition of which goes all the way back to California Common Law.

    Amphipolis (b120ce)

  35. But, Dustin, there are a fair number of people out Reinholdt’s way who probably view him as the perfect fix for a broken appointment system, and, when you use the phrase “crappy judge”, they assume you mean the SC that keeps overturning this valiant fighter against a murderous society. (Yeah, their words, not mine.)

    Unless we want to see our own people getting knocked out of judgeships for being “crappy” whenever the electoral pendulum swings way out left, I think we’re stuck with trying to find some way to adjust the initial selection that Democrats will also support.

    The problem comes for real when Reinholdt is appointed to Scalia’s seat. Imagine what wise latina judges will be able to accomplish then!

    bobby b (4baf73)

  36. bobby, I don’t think judges would be thrown out for political reasons under the system I proposed, but there needs to be a system that gets judges thrown out if they stray too far, as this judge clearly has, since he’s lying to the Court.

    Lots of lawyers talk about how judges must be absolutely free from interferences in politics. But if all the governors of a district agree that a circuit judge is not doing their job correctly, that judge should be removed. They can be held to account by the voters if they really are playing politics, but that would probably never happen.

    And even if it did happen once in a while, this is a much better problem to have than a runaway judge like Reinhardt.

    robert, I realize this tool doesn’t exist in the present scheme. That’s why we have this problem. We should realize that our current system is not sacred. We need to change it if it’s clear we have a problem. Also, let’s remember who is usurping who here. It’s the feds intruding into state affairs, not vice versa.

    Getting several governors together to agree on something would be difficult. It would be newsworthy. In this case, it would be justified. But I don’t really care about that specific idea… I just want judges who are clearly not administering laws to be thrown out, somehow. I don’t want elections, just some kind of consequence for this kind of obvious lawlessness.

    Dustin (bb61e3)

  37. Any change to the removal process involving Federal Judges would require an Amendment IMO.
    I think the liklihood of that is even less than getting Reinhardt impeached, & convicted.

    AD - RtR/OS! (138fbd)

  38. Dustin – I understand your (and not incidentally my) desire to rein in judges who, like Reinhardt, are not mere mavericks but active rogues. I simply worry that any ‘cure’ for the short-term evil is too likely to create a long-term curse.

    Unfortunately, as long as we continue to give the power of appointment to men such as Carter, Clinton, and Obama (others would say Reagan, Bush, and Nixon) we must rely on a Senate that acts in the interests of the Nation, not their personal political hobby-horses. That means Calif. (the State most immediately effected by Reinhardt) must quit sending Boxers and Feinsteins to Washington. (Pelosi, Garamendi, et al are Representatives and have no direct say.)

    I am reminded of the words of a cynical old guy my dad knew when I was a kid “We’ll get the government we damn well deserve and go down whining it was someone else’s fault.”

    Robert N. (070cb0)

  39. This really is a stunning display of dishonesty from Reinhardt, who has, in effect, been caught in a lie.

    b (df882e)

  40. Perhaps we can get him disbarred?
    Has any Federal Judge ever been disbarred for violating the Canons of Ethics?
    And, would disbarrment be grounds to request his resignation?
    Or grounds for impeachment?

    AD - RtR/OS! (138fbd)

  41. Shouldn’t states Attorneys General or whatever prosecutor is bringing the case, on appeal, to the Ninth Circuit, be able to petition that Judge Reinhardt not be seated in judgement of their case because he is obviously biased? I can’t imagine such would go over too well at first, but enough such petitions would call legal attention to the problem.

    In a capital case, jurors who state that they cannot apply capital punishment upon conviction are simply excluded; why couldn’t the same be true of a judge?

    The legally incompetant Dana (474dfc)

  42. Patterico – when a judges hands down an opinion, does he attach his signature to it ? If he does, in so doing, is he in any way doing so under any oath or as an Officer of the Court, and/or in any way then subject to discipline from any group below the full Senate in impeachment proceedings ?

    Alasdair (b07c14)

  43. Largebill wrote:

    With judges like this moron, California should go ahead and do away with the death penalty. If you are not going to effectively use it then all it does is serve as welfare for lawyers.

    According to the Death Penalty Information Center, California reinstated capital punishment in 1974, had no executions at all until 1992, and has executed a total of 13 people since that time, or one every 15.69 months. Current death row population in the Pyrite State is 678. Assuming that no one else is sentenced to death in California and the same execution rate is maintained, it will take 886½ years for the state to execute everyone so condemned.

    For all practical purposes, California has abolished capital punishment; they just have a few cases to excite the public imagination, but waste a clear pile of money going through the legal motions on a prison population that is almost entirely going to die from something other than state action.

    Just for y’all’s huge budget crisis, the Governator could simply commute all capital sentences to life without parole.

    The Dana who can count (474dfc)

  44. Dana has a point… the idea that an attorney would have to argue a DP case before Reinhardt is ridiculous.

    Dustin (bb61e3)

  45. Mike Farrell better start lighting some candles.

    daleyrocks (718861)

  46. AD: your comment about Lynn Stewart was the best news I heard all day. I hope they don’t wimp out and let her off.

    PatAZ (9d1bb3)

  47. […] Reinhardt Reversed 9-0 on Death Case; Supreme Court Catches Him Dissembling Filed under: General — Patterico @ 6:51 am […]

    Common Sense Political Thought » Blog Archive » The impracticality of capital punishment (73d96f)

  48. Dustin: You say “If a conservative did what a liberal did, though, I know the right would condemn the kind of crap the left laughs off.”

    Are you familiar with the 5th Circuit? Or the Texas Court of Criminal Appeals? Both routinely flout SCOTUS’s directives re: death cases, and I don’t see “the right” offering any condemnations. To the contrary, in fact. . .

    Sloan (61ee70)

  49. To the contrary, in fact …

    You can demonstrate the people around here cheerleading the actions you describe, Sloan?

    JD (d606fc)

  50. JD: Your ask about”the people around here,” but I don’t read Dustin’s comment as being limited to the subset of “the right” who comment on this blog. For the record, I don’t see a lot of “cheerleading” of such injustices on this blog—just resounding silence, which is equally problematic. For example, one article on Miller-el (which was devoted primarily to the notion that this twice-reversed case wasn’t as much of a smackdown of the 5th Cir. as another reversed case was to the 9th Cir.); nothing on Perry’s antics re: the Willingham execution, etc.

    Sloan (61ee70)

  51. This is an amazing case for two reasons. First, Reinhardt and his colleagues completely altered their view of the case put on by defense lawyer Schick. There’s no word for this other than dishonesty.

    Second, the defense lawyer did a great job. He did everything he could to avoid having the priors entered while presenting a mitigating case; the reward for this was the Ninth Circuit labeling his advocacy “deficient”. It’s no wonder death penalty cases are so hard to staff. But this is not the last case you will see this year where this judge takes a view of the evidence to get the result he wants.

    Cyrus Sanai (311cd8)

  52. […] Stephen Reinhardt, deciding not to tell readers when the Supreme Court declared that Reinhardt had dissembled in a death penalty […]

    Patterico's Pontifications » Patterico’s Los Angeles Dog Trainer Year in Review 2009 (e4ab32)

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