Friday, April 15, 2005

Musladin v. LaMarque (9th Cir. - April 8, 2005)

This opinion may be one of those classic Ninth Circuit cases that just doesn't have staying power.

It's not that I'm not sympathetic with the result. I am. I'm confident that it's both prejudicial and improper for a judge to allow the family of the alleged victim in a murder case to sit in the front row -- right behind the prosecutor -- for the entire 14-day trial with huge buttons that depict the alleged victim. That's obviously an attempt to influence the jury. No right-thinking jurist would allow it.

But it's harder to hold, as Judge Reinhardt and Berzon do here (with Judge Thompson dissenting), that this error meets the standard for habeas relief under the AEDPA. The analogous Supreme Court cases on the issue are far, far from on point. And even the closest Ninth Circuit case on the issue is arguably distinguishable (although, to make clear, it's not). So it's hard to reach the proper result under the AEDPA.

Which is why Judges Reinhardt and Berzon, in my view, stretch a bit. But that's precisely the circumstances in which the rest of the court (and the Supremes) like to pounce. With an overwhelming en banc or per curiam reversal. So read this one while you can. Because it's far from clear that it'll still be precedent a couple of years from now.