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It used to be that a capital habeas corpus petition at the 9th U.S. Circuit Court of Appeals was a gimme: California death row inmates could pretty much count on the circuit to live up to its liberal reputation and order them some form of relief. Not any more. In seven capital habeas cases decided since Sept. 21, the court has ruled against the prisoner five times. Before that, it had ruled in favor of the petitioner 17 times in a row. “It’s absolutely true that you’re less likely to win in a capital case now than three years ago,” said Professor Rory Little, who teaches criminal procedure at Hastings College of the Law. The recent spate of habeas denials means as many as four people could be scheduled for execution in California later this year. In January, Donald Beardslee became the first person put to death in California since January 2002. It could be that the circuit is finally getting the message from the U.S. Supreme Court, which has reversed many of the 9th Circuit’s death penalty rulings and more than once specifically told the court to butt out. But there’s another change that has pushed the court rightward: President George W. Bush’s four appointments to the circuit. Lawyers and judges predict that the 9th Circuit’s rightward tilt in capital cases will become even more pronounced in coming months. The 1996 Anti-terrorism and Effective Death Penalty Act, which Congress designed to limit the ability of federal courts to overturn state decisions, is becoming more of a factor in habeas petitions. In addition, four vacancies remain on the court out of a total of 28 active judgeships. If Bush manages to overcome the current Senate filibusters, he could transform a court that’s been a bastion of liberalism. “It would only take one to two appointees to turn this into a conservative court,” said a 9th Circuit judge who asked to remain anonymous. Bush’s first pick for the 9th Circuit was Judge Richard Clifton in July 2002. Then came Jay Bybee, Consuelo Callahan and Carlos Bea the following year. The influence of Bush’s judges in the recent habeas denials is apparent. In four of the five cases, the denials stood on three-judge panel decisions without going to en banc review. In the case of Williams v. Woodford, 05 C.D.O.S. 1005, at least nine judges — all of them Democratic appointees — urged an en banc vote but fell a few votes short of a majority. Only active judges can participate in en banc voting. Because it’s a straight majority vote of all the active judges, it’s a good measure of which way the court is leaning on a particular issue. The court does not release the results of en banc voting. But another 9th Circuit judge who asked to remain anonymous said the influence of the Bush judges in habeas cases is clear. “If you could see the votes I think you would see that they were very close,” said the judge. “You add four more [Bush judges], you will have very, very few death penalty cases going en banc, if any.” That would be fine with Senior Assistant California Attorney General Dane Gillette, the state’s capital case coordinator. He said there could be a number of explanations for the court’s recent habeas denials, including the Bush judges and the beginning of the impact of AEDPA. “Or it may be a function of the court having felt that it has worked out all the serious problems,” Gillette said. “It’s really very difficult to say what’s going on. Obviously, we’re hopeful that [9th Circuit judges] will continue showing deference to state courts.” CALLING A HALT For this story, The Recorder examined 9th Circuit rulings for 24 prisoners over the last three years. For purposes of the analysis, a “grant” is a ruling in favor of the prisoner on any claim for relief, including remands for evidentiary hearings. A “denial” means the court ultimately ruled against the prisoner on all claims. Michael Laurence, executive director of the Habeas Corpus Resource Center, said it’s dangerous to assume Bush judges are more inclined to deny habeas petitions. “I don’t think the ideology of a president is a measure of what is going to happen in a capital case,” Laurence said. Laurence learned that lesson 15 year ago when he represented Robert Alton Harris, the first person executed after California reinstated the death penalty in 1978. A Ronald Reagan appointee, Judge John Noonan, halted the execution in 1990. Harris was executed two years later, after four more stays, and after the high court specifically ordered the circuit to back off. “Bush judges have not changed the practice in the 9th Circuit,” Laurence said. “You still need to create a very compelling reason of why you are entitled to relief no matter who your judge is.” Laurence believes the more significant trend is that an increasing number of petitions are reaching appellate panels after district judges have held evidentiary hearings “so that the merits are the centerpiece of the appeal,” he said. The 9th Circuit is much less likely to grant relief on the merits compared to procedural grounds, such as a request for an evidentiary hearing. Only 11 people have been put to death in California since capital punishment was reinstated. There are currently 638 inmates on death row, many of them there for more than 20 years as the state and then the federal courts sort out their appeals. Arizona, the 9th Circuit state with the next-largest death row, has executed 22 since 1992. Currently there are 128 prisoners on that state’s death row. ‘ROUNDS AND ROUNDS’ The 1996 Anti-terrorism and Effective Death Penalty Act was designed to limit federal court review of state court decisions in capital cases. But Laurence, unlike his counterpart at the AG’s office, does not believe AEDPA will speed things up. In fact, he said, the law is the single biggest reason cases take so long to resolve right now, because lawyers go through “rounds and rounds” of litigation over whether and how it applies. And the 9th Circuit isn’t helping to clear things up. Just last month, a 9th Circuit en banc ruling that had interpreted AEDPA favorably for prisoners was reversed by the U.S. Supreme Court. Brown v. Payton, 05 C.D.O.S. 2398, held that “the Ninth Circuit’s decision was contrary to the limits on federal habeas review imposed by AEDPA.” Ninth Circuit Judge Alex Kozinski, who was appointed by President Reagan in 1985 and is scheduled to become the next chief judge, said it’s difficult to spot the influence of particular judges because there are so few death cases “and any one judge may only sit on one or two of them.” “I think it will take quite a bit more time to spot trends in the court as a whole. Occasionally, we have something big here — like AEDPA — and that may affect the outcome,” Kozinski said. “I wouldn’t guess there was a trend. I certainly don’t see myself as being a part of it. But fish maybe can’t see the stream.” Judge Sidney Thomas, who serves as the circuit’s capital case coordinator, also does not see any significance to the recent denials. “Obviously, each case is decided on its own merits,” he said. Thomas agreed with Laurence, though, about the district court work on cases, which now come to the circuit with many issues already resolved. “Legal questions get settled. Cases that raise similar issues are more easily decided,” Thomas said. That means there’s less for 9th Circuit judges to hang a hat on. Kozinski said judges are not reacting to criticism from outside the court, nor does he lose any sleep over getting reversed by the Supreme Court. But both he and Thomas said capital cases get special attention. “There tends to be a lot of traffic from other judges” in the form of internal memoranda, Kozinski said. “Often, if there is an amended opinion, you can infer that it may have been prompted by another judge’s suggestion.” TOO LATE TO SEE TRENDS So what does this all mean for the attorneys who work the cases? Tracy Dressner is a La Crescenta, Calif., solo who worked on a petition for inmate Larry Davis, who was denied relief in September by a three-judge panel in Davis v. Woodford, 04 C.D.O.S. 8599. There’s still an en banc petition pending in Davis, and Dressner recently began briefing another habeas case at the 9th Circuit. Dressner said the cases take so long to get through the courts that “the trends tend to happen after you’ve already done your briefing.” However, she said, if the current spate of denials continues, it could discourage attorneys from taking the cases in the first place. California already suffers from a shortage of qualified death penalty lawyers. “It’s one thing to engage in litigation and have a happy outcome, which is what was happening for years in the 9th Circuit,” Dressner said. “And it’s another thing to realize that there is a possibility that the state is going to kill your client at the end of the day.”

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