{"id":411,"date":"2020-01-17T16:56:59","date_gmt":"2020-01-18T00:56:59","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=411"},"modified":"2020-02-26T09:54:56","modified_gmt":"2020-02-26T17:54:56","slug":"wiping-out-convictions-via-litigation-collusion","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=411","title":{"rendered":"Wiping Out Convictions Via Litigation Collusion"},"content":{"rendered":"

What does it take to wipe out a conviction? Normally, it takes reversal on appeal, a pardon from the governor (in most states) or president (for federal offenses), or a successful collateral attack on the conviction. In the latter, another court finds that the judgment was illegal.<\/p>\n

Yesterday, the U.S. Court of Appeals for the Ninth Circuit summarily reversed a decision of the federal district court and directed it to nullify a conviction upheld by the California Supreme Court. This action was not because the conviction is unjust, not because it is illegal under current law, not because the case has been made for creating a new rule, but purely because the California Attorney General, as lawyer for the prison warden, switched sides and stopped defending the conviction, over the vehement objection of the San Bernardino District Attorney, who represented the People in the criminal case. What is going on here?<\/p>\n

<\/p>\n

Occasionally, as cases work their way up the appellate ladder, the office representing the government will change positions on a question of law and agree with the attorney for the criminal defendant or habeas corpus petitioner. This situation comes up in the Supreme Court now and then. The high court has never, to my knowledge, regarded the government’s change in position as enough reason by itself to reverse the decision of a lower court. Sometimes the Supreme Court sends the case back to reconsider in light of the change, and sometimes it appoints an amicus to brief and argue the case in support of the judgment below. See, e.g., this post<\/a> on the archive blog.<\/p>\n

This case involves an attorney in San Bernardino County, now deceased, who is under attack in the case of murderer Ezzard Ellis, not for any deficiency in representation with a reasonable probability of affecting the outcome, but for his deeply prejudiced attitudes. The California Attorney General defended the conviction all the way through the Ninth Circuit panel opinion and prevailed, but on petition for rehearing the AG abruptly changed sides and agreed that the attorney’s attitudes were enough to overturn the conviction without a showing of actual prejudice.<\/p>\n

The Ninth Circuit took the appointed-amicus route initially, and appointed CJLF. I duly briefed<\/a> the case and came to the Ninth Circuit to argue the merits. I think I had the better of the merits argument<\/a>, but it was a “tough room,” as they say in showbiz. However, I got a lot of questions on an issue I had not been asked to brief, whether the AG’s concession made the case moot.\u00a0 I didn’t think so, and I don’t now. The Supreme Court’s consistent practice is contrary, and that court is particularly fastidious about jurisdictional issues, including mootness.<\/p>\n

If Ninth Circuit concludes that the high court is mistaken, and there is a rule of law that makes the concession of the government attorney grounds for summary reversal alone, that conclusion requires a complete explanation. There is none here. Just an unexplained order.<\/p>\n

The Ninth has a problem with the case in that it cannot muster a majority for single rationale on the merits. Three judges believe that the California Supreme Court decision was not merely wrong but unreasonable. That conclusion is itself not merely wrong but unreasonable, and it would be a strong candidate for summary reversal in the U.S. Supreme Court if the Ninth Circuit as a whole accepted that rationale. Five judges would evade the standard mandated by Congress for collateral attacks on state court decisions by parsing the petitioner’s claim so finely that they can say the state court did not decide the claim at all. Then they would rely on the AG’s waiver of the procedural default rule to reach the merits (and decide them wrongly, in my opinion).<\/p>\n

Judge Callahan writes a blistering dissent. Judges Bybee and Smith are curiously silent.<\/p>\n

There is a real problem with the separation of powers structure of state governments if the Attorney General can overturn a state judgment merely by caving in on a dubious claim. It is one thing to concede a habeas corpus case when the prisoner is clearly right based on established law. It is quite another to concede when the claim is way out on a limb, unsupported by precedent.<\/p>\n

The judicial branch of the state government has issued a judgment. It is the job of the executive branch to carry it out. When a petition asks a federal judge to order a state prison warden to violate his duty under state law, the Attorney General should resist that effort unless federal law clearly overrides the state judgment, which it certainly does not in this case. A concession in litigation on an extremely shaky claim is tantamount to collusion.This is a dangerous precedent.<\/p>\n","protected":false},"excerpt":{"rendered":"

What does it take to wipe out a conviction? Normally, it takes reversal on appeal, a pardon from the governor (in most states) or president (for federal offenses), or a successful collateral attack on the conviction. In the latter, another court finds that the judgment was illegal. Yesterday, the U.S. Court of Appeals for the Ninth Circuit summarily reversed a decision of the federal district court and directed it to nullify a conviction upheld by the California Supreme Court. This action was not because the conviction is unjust, not because it is illegal under current law, not because the case has been made for creating a new rule, but purely because the California Attorney General, as lawyer for the prison warden, switched sides and stopped defending the conviction, over the vehement objection of the San Bernardino District Attorney, who represented the People in the criminal case. What is going on here?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24],"tags":[],"class_list":["post-411","post","type-post","status-publish","format-standard","hentry","category-habeas-corpus"],"yoast_head":"\nWiping Out Convictions Via Litigation Collusion - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=411\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Wiping Out Convictions Via Litigation Collusion - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"What does it take to wipe out a conviction? 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