You can tell a lot about the particular constituents of the federal legal justice system by today's en banc opinion.
It's a habeas case that originally progresses in the usual way. Defendant's convicted at trial, his state appeals were unsuccessful, his state habeas petition gets him nowhere, and the federal district court denies his federal habeas petition. Par for the course.
But then things get funky.
In the Ninth Circuit, the panel affirms. But all three panel members join a separate concurrence to the per curiam disposition. Every one of them says they'd vote to reverse if they weren't bound by an en banc opinion from 2001. And the issue here is a sensitive one; whether a criminal defendant can get habeas relief when he can prove -- as defendant does in spades here -- that his defense counsel was a stone cold racist. The concurrence was also a sensitive and very personal one, a memorable portion of which expressed the following:
"Lawyers today look very different than they did in 1991,
when Ellis was tried. Within a generation, diversity among
legal practitioners has markedly increased. On appeal in our
court, of the three judges and two advocates at oral
argument, four were people of color. These changes matter.
Minority lawyers’ greater representation on the bar has led
to a growing acknowledgment and intolerance of racial bias
in the practice of law. But it has not ended racism, both
subtle and overt. . . .
When examining the reasonableness of counsel’s
performance, we extend considerable deference to strategic
choices. This deference is predicated on the assumption that
counsel is acting in the client’s best interest. For an attorney
as deeply racist as Ames, that assumption is unfounded. It
makes no difference that Ellis was unaware of his counsel’s
beliefs. The deleterious effect of such racism on the
outcome is usually impossible to prove and, under these
circumstances, we should presume prejudice."
That was Judges Nguyen, Hawkins and Tashima. And tells you something about them.
Not surprisingly, the Ninth Circuit takes the case en banc. At which point the case takes several interesting turns that again tells us something about the people involved.
It's a high-profile case about racism in the criminal defense system. All along the way, the California Attorney General's Office has been doing what that office does in virtually every single case: defend the validity of the conviction.
But, perhaps -- and I'm just speculating here, but I think I'm right -- Xavier Becerra has learned a thing or two from Kamala Harris' contemporary presidential bid. Which is that people like it when you're a legal officer of high standing, but simultaneously, that doing stuff that left-of-center voters don't like can hurt you in a primary. And this is one of those things that could definitely come back to haunt you, since very few people like defending racists and convictions arising therefrom.
So, for the first time ever in this thirty-year old case, the Attorney General's Office now confesses error. Something it hadn't done even at the federal appellate stage of the process a year earlier. An event that tells you something about Xavier Becerra.
So now the en banc court has a confession of error, and as a result, not surprisingly, issues a very brief per curiam opinion that reverses the dismissal of the habeas petition based on this concession.
But there's still more to come.
Judges Nguyen, Thomas and Murguia aren't happy with not explaining why the case comes out the way it does. The facts, the legal principles, etc. So they begin their separate concurrence by saying:
"I write separately because I strongly disagree with the majority’s refusal to explain its decision,
particularly in the face of a vigorous dissent. No settlement
is on the books. The State of California now agrees with
Ellis’s interpretation of the law but does not agree to grant
him the new trial he seeks. The parties have asked us, and
we are obligated, to decide whether Ellis received the
effective assistance of counsel guaranteed by the Sixth
Amendment. To do so without a reasoned analysis in a case
like this is a disservice to the parties, the victims’ families,
and the public."
That tells you something about them. At least in this particular context.
Judges Watford, Hawkins, Wardlaw, Hurwitz, and Owens also join a separate concurrence. But theirs is very brief one. They just want to deal with the dissent's legal contention, which argues that the confession of error shouldn't matter. So their concurrence states, in full:
"I write separately to respond to the dissent’s contention
that the court’s order granting relief is forbidden by
28 U.S.C. § 2254(d). That provision applies only when a
claim has been “adjudicated on the merits” in state court. Id.
It does not apply here because the claim on which the court grants relief was never adjudicated on the merits in state
court.
As the district court correctly determined, Ezzard Ellis
raised three distinct ineffective assistance of counsel claims
in his federal habeas corpus petition: one based on Strickland
v. Washington, 466 U.S. 668 (1984); another based on
Cuyler v. Sullivan, 446 U.S. 335 (1980); and a third based
on United States v. Cronic, 466 U.S. 648 (1984). Ellis never
raised his Cronic claim in state court, and thus the state
courts never adjudicated that claim on the merits. While
Ellis’ failure to raise his Cronic claim in state court would
ordinarily render the claim unexhausted, the State has
waived the exhaustion requirement here, as it is permitted to
do. See 28 U.S.C. § 2254(b)(3). As a result, § 2254(d) poses
no barrier to the court’s granting relief on Ellis’ Cronic
claim."
So that legally-focused concurrence tells you something about them. Again, at least in this context.
Judge Callahan dissents. She insists that the habeas petition should remain dismissed even though the state has waived the exhaustion claim and confessed error. Her dissent is 18 single-spaced pages long, and no one else on the panel joins it. Her dissent concludes with the following:
"The abhorrently racist statements of Ames, as evidenced
by the record, makes this a difficult case. Ames was an
offensive and abusive human being, even by the accounts of
those who knew him best. To any extent that Ames’ racism
rendered his representation of Ellis at trial prejudicially
deficient, we certainly have an obligation under the Sixth
Amendment to correct it. But where, as here, a habeas
petitioner fails to show that his trial counsel’s racist beliefs
adversely affected his performance at trial, as required under
Sullivan—much less that it created a reasonable probability
of a different result, as required under Strickland—we are
bound under AEDPA and the Sixth Amendment to deny
Ellis’ request for habeas relief."
That tells you something about her.
That leaves the rest of the panel. Which consists entirely of Judges Bybee and Milan Smith. They simply join the per curiam opinion, and don't otherwise explain their result. Which, again, tells you something about them, at least (again) in this context.
So it's an interesting en banc opinion that gives a fair piece of insight into many of the individual participants in the process.
