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In an attempt to check the development of a controversial body of law, four 9th U.S. Circuit Court of Appeals judges argued Tuesday that a California inmate’s conviction should not be overturned because his lawyer was ineffective. The four-judge dissent from a decision not to rehear the case with an 11-judge en banc panel has no precedential value. But it strikes at the heart of a 9th Circuit trend of overturning state court decisions, often on the basis of prisoners’ claims that their lawyers could have done more to spare them from convictions or lengthy sentences — and, in some cases, the death penalty. In doing so, the four judges — author Andrew Kleinfeld, joined by Judges Diarmuid O’Scannlain, Thomas Nelson and Richard Tallman — argued that not even Clarence Darrow’s famed closing argument during the trial of Leopold and Loeb would have passed muster. “This growing body of law is a bad idea. We ought to have more respect for the dedicated lawyers who defend criminal cases, and respect the judgments and instincts they apply in light of [the] much greater knowledge of their clients and cases than we have,” Kleinfeld wrote. “And we ought to have more respect for the considered judgments of our equally learned counterparts on the state courts.” One of the underpinnings of the dissent was a series of recent summary reversals of the 9th Circuit by the U.S. Supreme Court. In two of those, the nation’s largest appellate court had second-guessed California state courts. In Gentry v. Roe, 03 C.D.O.S. 866, Lionel Gentry was convicted of stabbing his girlfriend in 1994 following an argument. She was hospitalized for a week, and Gentry was convicted of assault with a deadly weapon and sentenced to 39 years to life under California’s Three Strikes law. There was no question that Gentry stabbed her. The question was intent — Gentry said he stabbed his girlfriend accidentally during a struggle with a drug dealer. In first deciding the case in August 2002, a divided 9th Circuit panel focused on the defense attorney’s abbreviated closing arguments. The lawyer said of Gentry: “If he’s lying and you think he’s lying you have to convict him. If you don’t think he’s lying — bad person, lousy drug addict, stinking thief, jail bird, all that to the contrary — he’s not guilty.” In overturning the conviction, Senior Judge Jerome Farris wrote that Gentry’s lawyer failed to mention several factors favorable to the defense. Nor did he bother to ask the jury to acquit his client. After the August decision was released, the state attorney general’s office asked the court to rehear the case en banc. A vote was requested but failed to get a majority of the court’s active judges. Tuesday’s dissent was in response to that vote. Calling the case a “lead pipe cinch,” Kleinfeld said: “I am especially concerned about this case, not only because it flies in the face of what the Supreme Court has told us to do, but also because it has the potential to damage the quality of criminal defense in our circuit. We’re de-fanging defense counsel by limiting flexibility on closing argument, particularly by limiting the techniques counsel can use to establish personal credibility and argue reasonable doubt.” With three unanimous reversals on the first day of its 2002-03 term, the Supreme Court reminded the 9th Circuit that it should not overturn state judges unless there was “an unreasonable application of clearly established federal law.” But since then, the 9th Circuit has continued to find fault with the decisions of California judges. In one such case, 9th Circuit Judge Susan Graber dissented to remind the majority that the high court had just “chastised this court, in the strongest possible terms.” Dane Gillette, who tracks habeas corpus petitions for the attorney general’s office, said he agreed with Kleinfeld’s dissent. “I think it was an outstanding outline for a cert petition,” said Gillette, who already has a handful of appeals pending before the Supreme Court.

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