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The Supreme Court Smacks the Ninth
And the Los Angeles Times smacks them again.


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On a Supreme Court as ideologically divided as this one, unanimous decisions are few and far between. But when the Court does review a case that brings all nine justices into accord, when even Antonin Scalia and Ruth Bader Ginsburg can find common cause, it’s a safe bet the case in question was sent up from the Court of Appeals for the Ninth Circuit. Last Monday, the Court handed down one such opinion, a back-of-the-hand slap at the Ninth Circuit, with its ruling in Carey, Warden v. Musladin.

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The facts of the case are simple, as laid out in Justice Clarence Thomas’s opinion:

On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. At trial, Musladin admitted that he killed Studer but argued that he did so in self-defense. A California jury rejected Musladin’s self-defense argument and convicted him of first-degree murder and three related offenses.

Had Musladin’s contented himself with shooting Studer only once, his claim of self-defense might not have been so laughable. But evidence presented at trial showed that Studer, after being shot once in the back, ran to a garage and attempted to hide under a car. Musladin followed him and fired again, with the bullet ricocheting off the ground and hitting Studer in the head, killing him. Musladin then kicked in the door of the house and pointed the gun at another man but did not shoot him. He was stopped by police and arrested while fleeing the scene of the crime.

It was not the facts of the case that persuaded a three-judge panel of the Ninth Circuit to reverse Musladin’s conviction in April 2005. Instead it was the conduct of some of the spectators at his trial, to wit, their wearing of buttons bearing a Studer’s picture, that moved Judges Stephen Reinhardt and Marsha Berzon to find in Musladin’s favor and order a new trial. (Judge David Thompson dissented, proving that Ninth Circuit isn’t completely beyond reason, only mostly so.)

During the 14-day trial, some of Studer’s relatives sat in the spectator gallery immediately behind the prosecutors. Affixed to their clothing were buttons bearing Studer’s picture. Outside the presence of the jury, Musladin’s defense attorney made a motion asking that the family members be instructed to remove the buttons lest they arouse undue sympathy among the jurors. The judge denied the motion and Musladin was convicted. The conviction was upheld by the California Court of Appeals and the California supreme court, bringing the case before the Ninth Circuit and the notoriously liberal Stephen Reinhardt, perhaps the most overruled appellate judge in the country.

Reinhardt ruled that in denying Musladin relief, the California courts had violated “clearly established federal law” by failing to recognize that the buttons were inherently prejudicial to Musladin’s right to a fair trial. The Supreme Court disagreed. I would have preferred that the opinion be assigned to Justice Scalia, but perhaps Chief Justice John Roberts felt that would have been excessive, that for the sake of judicial comity a terse rebuke from Clarence Thomas was preferable to the withering disdain Scalia might have offered. Be that as it may, Mr. Musladin’s appeals are now exhausted, and he must now seek other pursuits by which to pass the remainder of his 32-years-to-life sentence.

That a decision from the Ninth Circuit should be so resoundingly rejected by the Supreme Court is hardly news. What is surprising, if not staggering, about last Monday’s decision is that it was applauded by the editorialists at the Los Angeles Times. “This page, which strongly opposes capital punishment,” wrote the Times on Tuesday, “is nevertheless glad to see the 9th Circuit’s wrist slapped for improperly applying the law as it is written.”

Perhaps the editorial writer was unaware that capital punishment was not at issue in the Musladin case, or perhaps he felt that such a reaffirmation of the paper’s position on the death penalty was needed to soften the impact of what would follow. Whatever the case, the piece was a refreshing departure from the liberal pablum ordinarily found on the Times’s editorial pages. Reinhardt’s opinion, says the Times, “points to something more pervasive and troubling: that the 9th Circuit seems predisposed to second-guess state courts, especially in death penalty cases — even to the point of usurping the high court’s role. The 9th Circuit’s image problem is easy grist for conservatives, but it should be troubling to liberals and moderates as well.”

Alas, moderates are surely untroubled by the Ninth Circuit’s “image problem,” for to be moderate is to be untroubled by almost anything. And liberals are even less likely to be troubled by it, as it is emblematic of the sort of judicial activism liberals rely upon to reach objectives that cannot be achieved via the ballot box.

Still, the editorial was a nice surprise in Tuesday’s paper. Let there be more of the same from the Times.

— Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.



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