Judges Noonan and Reinhardt are extraordinarily concerned about fairness. Deeply, profoundly, and sincerely. In every case, including but not limited to (and perhaps exceptionally in) criminal cases.
So when the trial judge mistakenly tells the jurors that the defendant has pled guilty, the prosecution and the court reporter notice this error but says nothing, and one juror concedes during the trial that this error made her -- and perhaps others -- essentially "space out" during the trial because it didn't look like the trial made a difference any more, well, Judges Noonan and Reinhardt care. They vote to grant the defendant a new trial.
Judge Murguia, by contrast, dissents. She wouldn't grant relief. Especially in -- as here -- an AEDPA case.
You'll have your own view as to whether the majority or the dissent has the better of the argument. I am of the belief that a majority of the justices on the Supreme Court -- perhaps even all of them -- are not as similarly concerned as Judges Noonan and Reinhardt about fairness. Including but not limited to -- and perhaps especially in -- AEDPA cases.
So this one, I think, may well end up in yet another Supreme Court bench slap of the Ninth.
Time will tell.
