Judge Reinhardt vs. Judge Bybee on Actual Innocence

posted by Daniel Solove

A recent 9th Circuit decision, Smith v. Baldwin (9th Cir. Nov. 3, 2006), contains perhaps one of the most dramatic statements of disagreement between a dissent and majority opinion. The panel consisted of Judges Stephen Reinhardt, Procter Hug Jr., and Jay Bybee. According to the majority opinion (Reinhardt and Hug):

This case presents the question whether a state prisoner who contends that he is actually innocent, but whose principal witness is coerced by the state into not testifying on his behalf, may pursue his federal constitutional claims in federal court notwithstanding his failure to comply with all of the applicable procedural prerequisites. Roger Smith is currently serving a life sentence with a 30-year minimum term. The district

court dismissed on procedural grounds his petition for a writ of habeas corpus without reaching the merits of his

claims. It found that he had not exhausted those claims in state court and that, because state procedural rules barred him from doing so now, the claims were procedurally defaulted. Like the district court, we do not consider the merits of his case. All we decide is that, under an exception to the applicable procedural rules, Smith may pursue his federal constitutional claims in federal court.

The case emerges out of a burglary and robbery by Roger Smith and Jacob Edmonds of the home of Emmett and Elma Konzelman. According to the majority opinion:

Although there was no indication that the two who entered the house itself had planned to injure anyone, one of them, when out of the presence of the other, attacked the Konzelmans in their bedroom and bludgeoned Mr. Konzelman to death. Mrs. Konzelman, who survived the assault, told police that only one of the burglars had attacked the couple and that no one else entered the room at that time or saw the killing. There is no dispute that either Smith or Edmonds alone committed the murder. The ultimate question is which one.

There is substantial evidence in the record to suggest that Edmonds murdered Mr. Konzelman and that he committed

the killing outside of Smith’s presence and without any advance knowledge on Smith’s part that he would engage in

any violent conduct or that he possessed a dangerous or deadly weapon. . . .

However, as part of a deal with the prosecutor, Edmonds named Smith as the murderer in return for the dismissal of his murder charges. The conditions of the plea agreement required Edmonds to pass a polygraph examination showing that all of his allegations were truthful and to give a complete statement memorializing his accusation against Smith. . . . After learning that he would be prosecuted for capital murder and that Edmonds was going to testify against him, Smith, who had continuously asserted his innocence, pled no contest to robbery and felony murder. In return, he received a life sentence with a minimum term of 30 years. Although Smith pled no contest to the lesser charge of felony murder, the trial judge explained that he was enhancing Smith’s sentence because he believed that Smith was the one who had committed the killing, even though the evidence was far from clear on this point. . . .

In a notarized statement to the district attorney seven years after the incident and two years after the Oregon Supreme Court’s denial of review, Edmonds recanted his earlier testimony against Smith, implicitly acknowledging that he had murdered Mr. Konzelman. Edmonds explained that although he “stated in a sworn statement that Roger Smith . . . had in fact bludgeoned Emmit Konzleman [sic] to death,” he wanted “for the record [to] retract that statement. Roger Smith did not kill Emmit Konzleman [sic].” He then confessed to committing perjury in his statement against Smith and explained that “the only way for me to set the record straight is to write this confession now.”

Based on Edmonds’s recantation, Smith again requested post-conviction relief in state court. Smith’s second petition asserted that Edmonds’s 1996 recantation was new evidence that exculpated him and that his due process rights were violated both when the differences between aggravated murder and felony murder were not explained to him at the time of his plea and when the court failed to provide him with an adequate explanation of the charges against him, given that he was on drugs and of below-average intelligence.

The majority reasoned that the prosecution’s threat of seeking the death penalty against Edmonds effectively prevented him from giving exculpatory evidence in favor of Smith, and this led the court to presume that Edmonds’s affidavits are credible and to conclude that “Smith has made the requisite showing of actual innocence necessary to proceed to a hearing on his constitutional claims.”

The dissent by Judge Bybee takes issue with the majority opinion in the starkest way possible:

My view of the majority’s analysis of the evidence can perhaps best be described by paraphrasing author Mary McCarthy: I disagree with nearly every word the majority has written, including “and” and “the.” My profound disagreement is not limited to the facts, but runs throughout the majority opinion. I cannot agree that the prosecution engaged in misconduct when it informed Edmonds, correctly, that he was exposing himself to criminal liability by making statements that Smith did not kill Mr. Konzelman. Even accepting, arguendo, that this did constitute prosecutorial misconduct, I see no justification for the presumption of truthfulness that the majority affords Edmonds’s affidavits. The majority’s newfound presumption is contrary to our prior cases, all of which require that we remand to the district court for further findings as to the prosecution’s motives. Yet, all of this is largely a

sideshow because even indulging the majority’s presumption, the evidence in this case is still insufficient to qualify Smith for Schlup v. Delo’s actual innocence gateway. See 513 U.S. 298, 314-15 (1995). Indeed, in the thousands of habeas cases that have applied Schlup, I have been unable to locate a single case where a petitioner convicted of felony murder was able to establish actual innocence. Not one. And there is no basis for making this case the first. By all accounts, Smith was present, gloved, disguised, and armed with at least a rope when Mr. Konzelman was murdered in his home during the burglary. There isn’t a jury in the country that wouldn’t convict Smith today on a charge of felony murder. I therefore respectfully, but vigorously, dissent.

He later writes:

Unfortunately for the people of Oregon, and fortunately for Smith, the majority does not even consider the inferences that a reasonable juror would likely draw. Instead, the majority engages in one-sided advocacy, cabining its analysis to narrowly limit the universe of findings that a reasonable juror might make. In doing so, the majority infers elaborate conclusions from the tiniest scraps of evidence, building narrow platforms that it leaps between in a complex game of judicial hopscotch. It is difficult enough to trace their path; I cannot join them in it.

I’ll leave it to those with better knowledge of habeas doctrine to opine on which side has the better of the argument, but this has to be one of the most emphatic disagreements to be expressed in a dissent. Perhaps David Lat can come up with a good new term to describe this level of disagreement.

UPDATE: I have discovered that David Lat has already beat me to the punch. He blogged about the case here.

 November 5, 2006 at 9:35 pm   Posted in: Criminal Law    Print This Post

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