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Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed. In the Supreme Court’s death penalty jurisprudence, two federal courts of appeals play separate but equally important roles: the Fifth Circuit U.S Court of Appeals, which the court repeatedly takes to task for ignoring prior precedent to reach pro-prosecution results; and the Ninth Circuit, which the court repeatedly takes to task for ignoring prior precedent to reach pro-prisoner results. The state of California hopes that 06-1142, Ayers v. Daniels, which the court will consider in its private conference today, will fall into the latter category. Almost 25 years ago, two Riverside City police officers executed an outstanding arrest warrant for respondent Jackson Daniels. During the course of the arrest, Daniels � who had been rendered a paraplegic by police officers during the robbery for which the two officers now sought to take him into custody � pulled out a gun from between his legs and mortally wounded both policemen. After a trial that involved a series of different attorneys being appointed to represent him, Daniels was convicted of two counts of first-degree murder and sentenced to death. After his appeals and state habeas petition were denied, Daniels sought relief in the federal courts, where � nearly 10 years later � he found better luck. A federal district court held an evidentiary hearing and threw out Daniels’ death sentence. The court reasoned first that Daniels’ massive distrust of his trial counsel (which stemmed from, inter alia, his trial counsel’s former service as a county prosecutor; the removal of another attorney, whom Daniels trusted; and his belief that his defense team was conspiring with the rest of the legal system to ensure his execution) resulted in a lack of communication with the trial counsel, which in turn resulted in the constructive denial of Daniels’ right to counsel at the penalty phase. Moreover, the court concluded, his trial counsel’s ineffective performance at sentencing denied Daniels his right to effective assistance of counsel. Finally, the court held, Daniels’ due process rights were violated by, among other things, the state trial court’s denial of his motion to change venue and its failure to instruct the jury that it could consider overlapping “special circumstances” only as a single factor in determining whether the death penalty was appropriate. On appeal, the Ninth Circuit affirmed the district court’s order vacating the death sentence and also held that Daniels was further denied the right to effective assistance of counsel at the guilt phase of his trial. In its petition, the state � represented by Supervising Deputy Attorney General Steven Oetting � not only challenges virtually every aspect of the Ninth Circuit’s decision but also seeks to create the overall impression that Supreme Court review is essential to rein in an out-of-control court. Thus, it explains, the lower court’s holding that Daniels was constructively denied his right to counsel based on the lack of communication with his trial counsel “provides a detailed and easy to follow roadmap for every criminal defendant intent upon disrupting our system of criminal justice: A defendant will be able to overturn a death judgment simply by refusing to cooperate with counsel at trial.” And addressing the Ninth Circuit’s conclusion that Daniels was deprived of his right to effective assistance of counsel when his trial counsel failed to thoroughly investigate possible mitigating evidence regarding his mental illness and possible brain damage, the state complains that the Ninth Circuit’s ruling both conflicts with decisions of two other circuits (because Daniels’ trial counsel relied on the opinion of two psychiatrists that Daniels did not suffer from mental illness) and “turns trial counsel into an uber-psychologist who must know more than the experts he retains.” Finally, the lower court’s due process holding, in the state’s view, “thumb[s] its nose at controlling precedent by this Court.” Opposing certiorari, respondent Jackson Daniels � represented by John Philipsborn of San Francisco � paints a very different picture of the decisions below. In his view, the Ninth Circuit merely affirmed the district court’s finding � based on an extensive evidentiary hearing � that there was an “irreconcilable conflict” between Daniels and his trial counsel that resulted in the effective denial of counsel. The Ninth Circuit’s decision cannot, he hastens to explain, be characterized as simply providing relief based on “an indigent defendant’s unwillingness to communicate with his trial counsel in the aftermath of a trial court’s failure to re-appoint his ‘favorite lawyer’ at public expense.” Nor did the Ninth Circuit’s decision create a conflict regarding a trial counsel’s ability to rely on mental health experts. The root of the problem, Daniels emphasizes, was instead his trial counsel’s failure to undertake a basic investigation. In light of that failure, “strategic decisionmaking, and informed approaches to the case, were not possible.” Which of these two characterizations of the Ninth Circuit’s decision will prevail? Had this been an ordinary case, Daniels’ effort to portray the lower court’s decision as highly fact-bound might well succeed. But as a state’s petition in a capital case out of the Ninth Circuit, this is far from an ordinary case and likely will garner a careful look. In any event, we may learn for certain whether the court will grant review as early as Monday.

Amy Howe

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