Ninth Circuit Judge Sandra Ikuta is speaking the Supreme Court's language.
Her colleagues on a panel today tossed the death sentence of an Arizona killer after finding the trial judge should have recused. Ikuta wrote a detailed, 20-page dissent, blasting her colleagues for granting habeas relief, which she says defies Supreme Court precedent, ignores justices' repeated message to the circuit about its handling of habeas cases and will likely lead to more frivolous claims of judicial bias.
In Hurles v. Ryan, Senior Judge Dorothy Nelson and Judge Harry Pregerson ordered new sentencing of Richard Hurles, who was convicted of stabbing to death a librarian in an attempted sexual assault in 1992. The two Carter appointees took issue with the trial judge for imposing the ultimate penalty after being involved in an interlocutory appeal in the case. The appeal was over a defense request for a second lawyer, since it was a capital case.
In a pleading filed on behalf of the judge during that phase of the case, the trial judge commented on the "overwhelming evidence" of guilt, and called the case "very simple and straightforward," Nelson wrote for the majority.
Hurles argued that the judge's refusal to recuse after making such commentary as a party in the interlocutory appeal denied him due process.
The majority agreed. Nelson's opinion said, "the potential for bias was unconstitutionally high."
The ruling comes on the heels of a Supreme Court term in which the circuit racked a 100 percent reversal rate on habeas cases. The high court took up six from the circuit, five involving review under the Antiterrorisim and Effective Death Penalty Act, or AEDPA, and overturned all of them, several unanimously or summarily.
In the Hurles opinion, the majority pointed to a Mississippi civil rights case to defend its holding, which drew Ikuta's scorn.
"With all due respect," wrote Ikuta, the majority equating the racial discrimination issues in civil rights case with the Hurles situation "fails even the straight-face test."
Ikuta, an appointee of George W. Bush, also called the majority's approach to AEDPA in this case "surprising" considering the correct application is "straightforward."
"The Supreme Court has harshly criticized our non-compliance with AEDPA deference, not only this term, but in many past years as well," Ikuta wrote.
She concluded by saying the ruling invalidates a lawfully imposed capital sentence and "further frays the (increasingly threadbare) fabric of our AEDPA and due process jurisprudence, and lays the groundwork for future, even more frivolous habeas challenges to trial judges' impartiality."