Ninth Circuit Overturns "Ghost Judge" Decision

On December 29, 2017, the U.S. Court of Appeals for the Ninth Circuit overturned the conviction of double murderer/rapist Francis Hernandez in a split decision. "Joining" Judge Reinhardt's opinion to form a majority was Judge Harry Pregerson, who had died a month earlier. See this post. Judge Jacqueline Nguyen dissented.

Judge Reinhardt died a few months later.

The case was reheard by a reconstituted panel, with Judges Kim Wardlaw and Milan Smith drawn to replace the departed judges. A new opinion was filed today upholding the district court's denial of habeas relief. Although the trial attorney was deemed ineffective for not pursuing a diminished capacity defense, that omission was not prejudicial because the case against the defendant was so overwhelming that there is no reasonable probability it would have succeeded.

So to avoid being labeled ineffective, the defense lawyer has to make the patently meritless mental defense. You have to throw the "Hail Mary pass" when it's the only play you have.

Judge Reinhardt's theory was that the standard for prejudice in the guilt phase of a trial (as opposed to the penalty phase of a capital case in a state with a single-juror-veto system) is whether there is a reasonable probability that a single juror would have bought the argument. That theory is conspicuously absent from today's opinion. That was the principal point of CJLF's amicus brief in the case.

The new opinion notes that petitions for panel rehearing or rehearing en banc (which, in the Ninth, means before a larger 11-judge panel) may still be considered. However, the chances of a defendant getting rehearing en banc when even Judge Wardlaw does not buy his argument are remote.

Ninth Circuit Overturns "Ghost Judge" Decision curated from Crime and Consequences Blog