Ninth Can’t Undo Knot Tied by Bad Lawyering

Sometimes it’s just not possible to be an activist judge, no matter how tempting it seems. Take the example of a Tuesday opinion by Betty Fletcher, the senior Ninth Circuit judge. In a seemingly straightforward decision, she wrote (.pdf here) that a Montana magistrate judge had authority to deny Dale Michael Hanson a certificate of appealability in his habeas case stemming from a 1995 conviction for sexual assault and deviant sexual conduct.

But in a special concurrence with herself, Fletcher lamented the “Gordian knot? tied by Hanson’s lawyers. “This appeal,? Fletcher wrote,? illustrates the consequences — often tragic — that result from procedural failures, as cases proceed from trial to appeal to post-conviction proceedings.?

In Hanson’s case, Fletcher wrote, his attorneys never tried to introduce as evidence phone messages left by the victim’s mother, in which she indicated “her vendetta to do anything to get even with him after their breakup.? And a jury might’ve considered “anything” to include fabricating claims of child abuse.

That failure, Fletcher wrote, “may have constituted ineffective assistance of counsel.? In fact, when the Ninth Circuit learned about the tapes in 2004, it withdrew an earlier opinion in the case and ordered rebriefing.

But the Ninth Circuit, she added, could not address those claims because they were procedurally defaulted. So Hanson loses. Which is particularly bad for him, Fletcher wrote, since, though Hanson is eligible for release from prison, he can’t get out because he maintains his innocence and won’t register as a sex offender.

“At oral argument, I suggested to the state that it consider alternatives to pursuing these state-law charges in light of the strength of Hanson’s claim of ineffective assistance of counsel and his unwavering claim of innocence,? she wrote in the concurrence. “The state’s stringent and unbending approach, however unfortunate, is unremediable.?

— Justin Scheck

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