Four times this month, the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there's no left-right political divide in the Big Bench's findings -- just right on the law and wrong on the law.
I take unanimous seriously. When the California Supreme Court issued a ruling last year that stayed a scheduled execution, I feared yet another over-reaching judicial fiat. But then I saw that all the justices were on board. The law had to be unambiguous.
In the instances of the three criminal reversals this month, the Big Bench clearly was sending a message to the Ninth Circuit -- particularly to Judge Stephen Reinhardt, who had written the opinions. And the message is: Show some respect for the law.
Followers of the Ninth Circuit are painfully aware of its reputation as an activist court that flouts laws it doesn't like and bulldozes rulings that defy its left-leaning politics. The San Francisco-based judicial district serves as a textbook example of how judges should not behave.
Start with Randy Moore's case. In a plea bargain, Moore pleaded "no contest" to the 1995 Oregon murder of Kenneth Rogers, whom Moore and two confederates had kidnapped and Moore had shot in the head. Moore was facing a possible death sentence. Thanks to the plea deal, he got 25 years and the possibility of parole.
Now, this is a sore spot for me because I don't think courts should even consider the appeal of any plea bargain unless the defendant was severely mistreated. But Moore appealed, and the Ninth seized Moore's plea bargain as proof he was represented by ineffective counsel.
The court's logic was deficient. As Criminal Justice Legal Foundation President Michael Rushford observed, Moore "got a good deal."
But the court was flouting federal law. Congress passed and President Bill Clinton signed the 1996 Antiterrorism and Effective Death Penalty Act precisely to prevent federal judges from issuing niggling orders that disregard court convictions and upend state appellate rulings.
In reversing Moore, Justice Anthony Kennedy had to remind the Ninth that its mandate is to follow the law.
Ditto the case of Joshua Richter, who was found guilty in a 1994 murder committed while he and an accomplice robbed a drug dealer. Once again, the Ninth found ineffective counsel.
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