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A sharply divided Ninth Circuit U.S. Court of Appeals overturned a California death sentence Monday, just hours after the Supreme Court summarily reversed the court — again — for not deferring to state court rulings. In a 9-0 ruling, the Supreme Court said a lawyer’s description of a client as a “bad person, lousy drug addict, stinking thief, jail bird” during closing arguments wasn’t per se ineffective assistance of counsel. It could have been, as state courts had ruled, an attempt to build credibility with the jury. The outcome in Yarborough v. Gentry — like two Ninth Circuit summary reversals handed down last term — was a not-too-subtle reminder to the Ninth Circuit to leave state rulings alone unless they are “objectively unreasonable.” But in a 6-5 ruling released Monday, an en bancNinth Circuit overturned a 5-2 death penalty affirmance by the California Supreme Court. The majority ruled that a prosecutor’s argument could have led the jury to discount mitigating evidence of the defendant’s religious conversion when it condemned the convicted rapist and murderer. “We have determined that there is a reasonable likelihood that the jury accepted the prosecutor’s erroneous statement of the law rather than the defense counsel’s and that it therefore failed to consider the only evidence offered in mitigation of the death penalty,” Judge Richard Paez wrote in Payton v. Woodford, 03 C.D.O.S. 9171. He was joined by Chief Judge Mary Schroeder and Judges Harry Pregerson, A. Wallace Tashima, William Fletcher and Marsha Berzon. The dissenting judges wondered how the state court majority could be termed “objectively unreasonable” when seven Ninth Circuit judges — the five dissenters plus two from the previous three-judge panel — had agreed with it. Writing the dissent, Judge Richard Tallman viewed William Payton’s conversion with a jaundiced eye. “Abstract legal discussions are important to the development of the law, but so is the ability to look at the impact of those abstract decisions in the context of the real world. Any legal errors were harmless in relation to the acts committed by the man who stood before the jury and asked it to mitigate his sentence based solely on his change of heart after he was caught,” Tallman wrote. He was joined by Judges Alex Kozinski, Stephen Trott, Ferdinand Fernandez and Thomas G. Nelson. Under the 1996 Anti-Terrorism and Effective Death Penalty Act, federal courts reviewing habeas corpus claims are supposed to defer to state court rulings, unless the state applied an objectively unreasonable application of clearly established federal law. Last year in Lockyer v. Andrade, 123 S.Ct. 1166, the Supreme Court made clear that “objectively unreasonable” means more than just “wrong” — seemingly setting a nearly insurmountable bar for defendants. But also last year, in Miller-El v. Cockrell, 123 S.Ct. 1029, the Supreme Court chided the Fifth Circuit for failing to oversee state courts in a case involving the exclusion of black jurors. “There the Supreme Court seemed to tell the Fifth Circuit, ‘Hey, you cannot abdicate completely to the state.’ It seems like a very fine line they’re asking courts to walk,” said Vikram Amar, a Hastings College of the Law professor. But the Supreme Court has said several times — unanimously — in little more than a year that the Ninth Circuit is on the wrong side of that line. “The summary reversals show how closely the Supreme Court watches the Ninth Circuit,” Amar said. In Gentry, 03 C.D.O.S. 9167, the Supreme Court cited favorably Judge Andrew Kleinfeld’s dissent from the Ninth Circuit’s refusal to rehear that case en banc. Kleinfeld wrote that under the ineffective assistance standards his colleagues laid out in Gentry, Clarence Darrow’s closing argument in the Leopold and Loeb case would have been deemed deficient. “To be sure, Gentry’s lawyer was no Aristotle or even Clarence Darrow,” the Supreme Court wrote in its unsigned opinion. “But the Ninth Circuit’s conclusion — not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable — gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials.” The resemblance of the Supreme Court’s words to Tallman’s Payton dissent is uncanny. Tallman added up the number of judges who gave the death sentence a stamp of approval and weighed it against the majority. Counting the five state Supreme Court justices, “Twelve judges carefully examined the penalty phase instructions and found them to be constitutionally adequate,” Tallman wrote. “Six judges disagree. Objectively, who is being unreasonable?” Actually, 10 judges have disagreed, including the two dissenters at the California Supreme Court, the dissenter on the original three-judge panel, and the district court judge who first granted Payton’s habeas petition. Nevertheless, the state will consider appealing Payton to the Supreme Court. “We will evaluate it for further review,” Deputy Attorney General Dane Gillette said.

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