The Ninth Circuit graciously reminds us this morning that it's not 1973.
Let's go back for a moment to that point in history. President Nixon takes the last troops out of Vietnam. Tower Two of the World Trade Center opens. Vice President Spiro Agnew pleads no contest to tax evasion charges and resigns. And the October War occurs, one result of which is to raise the price of oil from $1.50 a barrel to over $11.50 a barrel.
Meanwhile, the Supreme Court decides not only Roe v. Wade, but also a lesser-known opinion called Chambers v. Mississippi, in which it holds that the Due Process Clause was violated when a Mississippi court refused to permit a criminal defendant charged with murder from presenting hearsay evidence that another person had confessed to the crime. The Chambers decision was virtually unanimous, and was joined by even such pro-prosecution justices as Warren Burger. The sole dissenter was Justice Rehnquist, who asserted only that the defendant failed to raise the constitutional claim and thus did not reach the merits (though he'd likely have dissented on that point as well, I think). The Court ended its opinion by being expressly deferential to the state supreme court, but nonetheless reversed the conviction in order to allow the introduction of critical evidence that someone else confessed to the offense.
Flash forward to 2010. We're now fighting two, rather than one, tough-or-impossible-to-win guerilla wars, and President Obama has committed more troops to the war in Afghanistan while not (yet?) having pulled out the troops fighting the war in Iraq. Vice President Biden commits multiple gaffes and errors, but so far seems to be doing fine on his taxes. The replacement for Tower Two of the World Trade Center has yet to be built, or even really substantially started, a full nine years after it was destroyed. And there's no war in the mideast, but oil is at $70+ a barrel.
Meanwhile, the Ninth Circuit decides a case called Christian v. Frank. In which it unanimously reverses a district court that had granted the habeas petition of a criminal defendant charged with murder who had been prevented from presenting hearsay evidence that another person had repeatedly confessed to the crime. In an opinion written by a judge (Judge Beezer) who was appointed by a former movie star who in 1973 was the governor of California, but joined by two non-right-wingers (Judges Fisher and Graber) appointed by president who in 1973 had finished his "not inhaling" years and graduated from Yale Law School while dating a future senator. The opinion ends by stating that while the panel "sympathizes" with the defendant's understandable desire to present critical evidence that someone else had confessed to the murder, it is bound by the deference granted to state court decisions and hence cannot grant relief notwithstanding Chambers.
The times they are a changin'.
