Not much today from the Ninth Circuit or California Court of Appeal. One published opinion apiece, neither of which is especially enthralling. So, like the television networks, I thought I'd change the lineup today in order to spice things up. Linked, of course, to the law. With this query:
Let's say you've been sentenced to death. Who'd you most like to have on your Ninth Circuit panel?
Let me give you a hint. And I'll do so by telling you a story. The story of Joe Lambright.
Back in 1980, Joe was traveling across the country with his friend Robert Smith and Joe's girlfriend Kathy Foreman. Bob complained to Joe and Kathy that they got to have sex but he didn't, at which point Joe said they'd find her a woman to have sex with. And, Joe added, he'd like to kill someone just to see if he could actually do it.
So, near Tucson, Arizona, the trio picked up a hitchhiker, Sandra Owen. Bob raped Sandra in the back seat of the car, and again in the mountains, at which point Bob started choking Sandra and Joe started stabbing her. Joe then struck Sandra in the head with a rock, and Sandra died. Joe and Bob were ultimately arrested, Kathy was granted immunity in exchange for her testimony, and Joe and Bob were sentenced to death.
The Arizona courts affirmed Joe's sentence on direct appeal and state habeas. And the federal district court denied habeas relief as well. But, in 1999, the Ninth Circuit gets into the game, and things start to change. In the first appeal (which, remember, is 19 years after the crime), the panel reverses the conviction, with Judge Reinhardt writing the opinion (which Judge Ferguson joins) and Judge Thompson dissenting. Opinion #1. But that one promptly gets taken en banc (Opinion #2), and is reversed on a 10-1. The 1 being Judge Reinhardt. So then the case gets remanded back to the panel, which then (Opinion #3) temporarily reverses the death sentence and remands to the district court for an evidentiary hearing on the ineffective assistance of counsel claim. Which the district court conducts and finds no prejudicial error. At which point the case goes back up to the Ninth Circuit -- to, remember, the same panel -- and, in this opinion (Opinion #4), the panel reverses the district court and vacates the death sentence for ineffective assistance of counsel.
Mind you, I think the Ninth Circuit is probably right here. And its a unanimous per curiam opinion, after all, with even Judge Thompson (a Reagan appointee, remember) signing on. There really wasn't much at all done at the penalty phase here. It might well have made a difference. So I'm not at all saying the court got this one wrong.
It is, however, 27 years after the crime. And we've still got more to go. Joe ain't getting strapped down for quite a while at this point -- and, most likely, never will. And just remember how much time, expense, and effort we've flushed down the toilet to get to where we are. Not a happy state of affairs.
P.S. - The answer is Judge Reinhardt.
