Tuesday, January 21, 2020

Cook v. Kernan (9th Cir. - Jan. 21, 2020)

There's only one Ninth Circuit opinion published today.  But it's an opinion that results, I suspect, directly from the institutional pre-argument structures of Ninth Circuit chambers.

It was a death penalty case.  Notice the past tense.  The guy was sentenced to death in 1994.  But a decade or so later, he got his sentenced reduced to LWOP on state habeas review because he was intellectually disabled and, under then-recent Supreme Court precedent, we don't execute people like that.

So then he files his federal habeas petition, which continues in federal court the challenges to his conviction that he had filed in state court and that the state court rejected.  It's an AEDPA case, so the federal court grants a degree of deference to the state court's conclusions in this regard.  The primary issue is whether the state court correctly concluded that the defendant validly waived his rights under Miranda.

(1) One judge on the panel, Randy Smith, concludes that the state court reasonably concluded that the waiver was valid, and thus that relief should be denied.  (2) One other judge on the panel, Callahan, agrees with Judge Smith that the waiver was valid, and thus that relief should be denied, but also believes that, independently, even if the waiver wasn't valid, it would be reasonable to conclude that the error was harmless, and thus relief denied on that separate basis as well.  (To be clear:  I mention Judge Smith's first name because there are two "Smith's" on the Ninth Circuit, but there's only one "Callahan," which is why I don't mention her first name.  No disrespect intended.)  (3) The last judge on the panel, Murguia, disagrees with both of these conclusions, and accordingly believes that habeas relief should be granted.

Given this lineup, on first principles, the "normal" way you might think the respective opinions should be issued are for (1) Judge Smith to author the majority opinion, (2) Judge Callahan to join the majority opinion in full, but also to file a concurrence making her point about any arguable error being harmless in any event, and (3) Judge Murguia to dissent.

But, instead, Judge Callahan authors the majority opinion and also files a separate concurrence to her own opinion.  (Judge Murguia, obviously, dissents.)  Why adopt this structure rather than the more traditional (and, perhaps, straightforward) lineup?

I suspect it's because of which judge was responsible for the bench memo.

I would bet that Judge Callahan's chambers was in charge of preparing the pre-argument bench memoradum for the panel, which described the facts of the case, the arguments, and the relevant doctrinal principles.  Since Judge Callahan's chambers wrote that, and since that memorandum ultimately became (at least in structure) the "backbone" of the majority opinion that rejected relief, she was the one assigned to author the majority opinion.  Which in turn meant that since she was not able to get Judge Smith on board for holding that any error was harmless, she then needed to concur to her own opinion in order to express this singularly-held point.  (We don't know whether Judge Smith's decided not to join the harmless error part after argument or, instead, only after the draft majority opinion was circulated, but either way, the result was the same.)

All of which would have been unnecessary if Judge Smith -- who held the narrowest view of the case shared by a majority of the panel -- had been the one selected to author the majority opinion.  But this was not to be.  A reality that I suspect would have been different had Judge Smith's chambers to have been the one to write the original bench memo.

All speculation on my part, of course.  But speculation that I nonetheless believe is probably right.