Monday, September 29, 2014

Deck v. Jenkins (9th Cir. - Sept. 29, 2014)

Stephen Robert Deck was a lieutenant with the California Highway Patrol.  He started chatting online with someone he thought was a 13-year old girl named "Amy".

You already know where this is going.  Both what Mr. Deck wants from "Amy" and whether "Amy" is really a 13-year old girl.

Deck drives 45 minutes to meet "Amy" in a public place and tells her that even though he's sick, he "probably won't be able to my hands off you."  The police arrest Deck when he comes to the purported meeting, and in his car, they find not only MapQuest directions to "Amy's" apartment but also "six packaged condoms past the listed expiration date."

Seriously, dude?

I'll not recount in detail the underlying legal fight in the Ninth Circuit.  Suffice it to say that Judge Christen, joined by Judge Thomas, grants habeas relief based upon a fairly central misstatement of law made by the prosecutor in closing argument.  Judge Milan Smith, by contrast, not only dissents, but also helps to author the California Attorney General's petition for certiorari.  Judge Smith's dissent begins by saying:

"I respectfully dissent.  The Supreme Court has repeatedly—and often unanimously—reversed our circuit’s decisions granting § 2254 relief. For example, in its four most recent terms, the Supreme Court has reversed us thirteen times in cases involving our application of AEDPA, 28 U.S.C. § 2254, ten of which reversals have been unanimous. In my view, this case is yet another candidate for reversal because the majority flouts clear Supreme Court AEDPA precedent in order to justify its holding that a state court’s decision is incorrect."

Judge Smith then goes on to explain this conclusion at length.

Judge Smith's dissent contains a decent predictive argument as to what might well end up transpiring in this one.  But it simultaneously goes the other way as well.  Judge Smith ends his dissent with the following quote from Justice Scalia:

"It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit."

That definitely supports Judge Smith's argument that at least some members of the Supreme Court are more than willing -- desirous, even -- to reverse habeas relief grants by the Ninth Circuit.

But it also bears mention that this quotation from Justice Scalia was from one of his dissents from the denial of a writ of certiorari.

Proof itself that Supreme Court review of this one is far from certain.

P.S. - In a twist of fate, the Ninth Circuit publishes this opinion involving a fake 13-year old girl on the same day my daughter turns 13.  Happy birthday, Sierra.

Stay out of chat rooms.