Wednesday, May 27, 2015

Doe v. Ayers (9th Cir. - May 27, 2015)

Back in March, the Ninth Circuit unanimously granted habeas relief in a California death penalty case.  This was itself unusual.  (Though less unusual given the composition of the panel -- Judges Pregerson, Reinhardt, and Wardlaw.)  But even more unusual -- indeed, as far as I can tell, unprecedented -- was the fact that the panel did so in an opinion that referred to the petitioner as "John Doe".

Remember:  This is a death penalty case.  High profile.  Yet the Ninth Circuit went to great lengths to keep the identity of the prisoner secret.  And I mean great lengths.  Omitting tons of procedural history, leaving out various case citations, etc.

Today, the Ninth Circuit publishes a lengthy order that expands on its reasons for this unprecedented act.  Its rationale makes a lot of sense.  The opinion reveals lots of information about the childhood sexual history of the prisoner.  Other prisoners read published Ninth Circuit opinions.  You can imagine what might happen to the one prisoner if other prisoners learned about this history.  So the panel says it makes sense to keep things (relatively) secret.  Notwithstanding the California Attorney General's strong objection thereto.

Those who believe that prisoners sentenced to death deserve to be raped in prison are exceptionally unlikely to be swayed the panel's reasoning.  Others might find it persuasive.  For me, I see only a marginal upside in publicizing the names and identities of the relevant individuals.  Though, at the same time, I wonder if there's really a huge risk of fellow prisoners acting on the information at issue.  At least at present.  Since I imagine that prisoners sentenced to death are fairly segregated as well as subject to a decent amount of supervision by guards.  (I recognize that this doesn't absolutely guarantee safety, and won't necessarily continue if the panel's opinion takes effect and the prisoner's sentence is reduced to life in prison.  But given the historical treatment by the Supreme Court of Ninth Circuit opinions that were authored by Judge Reinhardt in death penalty cases, I'm not at all confident that the prisoner here is getting off death row any time soon.)

Regardless, the Ninth Circuit does what it does.  And is motivated by good principles.  Regardless of whether you agree or disagree with the result.

I'm not going to frustrate the panel's desire to keep secret the identity of the prisoner at issue by revealing his name here.  But I do wonder whether all this effort is really worth it.

Despite extensive efforts at "sanitizing" the panel opinion of all unnecessary references, it still contains enough facts about the case for one to fairly easily identify the identity of the relevant prisoner.  Especially since this case has been the subject of numerous published opinions already, not only in the Ninth Circuit, but in the California Supreme Court and even in the U.S. Supreme Court.  All one has to do is to look up the various facts and cross-reference them to the death penalty cases in those courts.  It took me less than two minutes to find out the prisoner's name that way.  (For what it's worth, the panel's decision to keep the year of the murder in the opinion -- 1984 -- made it incredibly easy, and could probably have been left out.)

Plus, even without any identifying facts, since this same case has been bouncing around the Ninth Circuit for years, one could simply look up prior death penalty cases in the Ninth Circuit that had (as here) the panel of Judges Pregerson, Reinhardt, and Wardlaw.  Took less than 30 seconds to find out the prisoner's name that way.  Or, since the panel (necessarily) mentions that its prior habeas grant was reversed by the Supreme Court, even an unsophisticated party could look at the past several years of Supreme Court death penalty cases from the Ninth Circuit and find out the guy's name.  That way took about a minute.

Admittedly, prisoners don't necessarily have all the resources that those of us on the "outside" do.  So maybe it'd take them a bit longer.  Though it's worth remembering that it only takes one, and at that point, the prison gossip machine would undoubtedly disseminate the information across the yard fairly quickly.

Moreover, even if the only thing one ever saw was the Ninth Circuit's most recent opinion, I'd bet that the prisoners actually in San Quentin would know the guy's identity pretty much instantaneously.  They know from the opinion that it involves a guy sentenced to death for a particular murder, and also know it all went down in the mid-80s (indeed, in 1984), so it's someone who's been in S.Q. for 30 years.  That narrows it down a ton already.  Plus, the panel tells everyone that it's a guy who "grew up in the South" and who was incarcerated there in 1976 at the age of 17; e.g., a southerner who's now 56 years old.

I'd be stunned if the folks at San Quentin can't figure out which one of them that is.  Westlaw or no Westlaw. (P.S. - It's also the dude who previously had a huge party once the Ninth Circuit reversed his death sentence only to have it reinstated by the Supreme Court.)

In short, this is all a lot of effort for likely nothing.  Still well-intentioned.  But basically futile.  Even if people like me respect the Ninth Circuit's decision by not publicizing the name.  (And, on that front, there's utterly nothing that stops the state, a victim, a reporter, a rabid conservative, or pretty much anyone from cranking out a blog post or press release or even a letter to every single prisoner at San Quentin that encloses the opinion and includes a post-it with the guy's name.)

But my guess is that even all this is probably moot.  Because my money's on the Supreme Court granting certiorari here anyway.  As well as issuing an opinion on the merits that definitely uses the guy's actual name.

There are some secrets in this world that are built to last.  This ain't one of 'em.