Tuesday, June 15, 2010

Taylor v. Sisto (9th Cir. - May 25, 2010)

I'll be surprised if this one survives.

Yes, it's strange. The California state court judge repeatedly told the jurors to leave all their life experiences in a metaphorical "box" outside the jury room when they were deciding the case. It was the judge's main theme. Some of what was to be left in the "box" were prejudices and the like; that's good. But the judge was clear that he wanted the jury to leave everything in the box; their own beliefs, experiences, reasonability, etc. That goes too far. Plus is just weird.

Weird is one thing. Reversible error is another. Reversible error on habeas review after AEDPA is yet a third. And while I think what the judge here is definitely (1), and at least arguably (2), I don't think it's (3). So on this one I think I'm with Judge Ikuta, who dissents, rather than with Judges Noonan and Berzon.

Plus, I think you should read this one while you can because it's the exact of case that -- while fact-specific and not at all worthy of Supreme Court review -- the Supreme Court sometimes likes to take up from the Ninth Circuit just to spank 'em down. Since I feel very confident that the vote in the Supreme Court on this one would not go the same way.