A little over a year ago, the Ninth Circuit granted habeas corpus relief to a defendant whose death sentence the California Supreme Court had affirmed in 1988. On Monday, with a two-thirds different panel, the federal appeals court withdrew its original opinion and filed a new opinion denying relief.
In December 2017, a 2-1 opinion in Hernandez v. Chappell concluded, “our confidence in the outcome of [the] trial is undermined.” The court faulted the defendant’s trial counsel for not presenting a diminished capacity defense based on mental impairment, finding the omission occurred because the attorney “was ignorant of the law.”
Judge Stephen Reinhardt wrote the opinion and Judge Harry Pregerson concurred. Judge Jacqueline Nguyen concurred and dissented, believing there was no reasonable possibility of a different result had the lawyer’s conduct not been deficient.
Judge Reinhardt died in March 2018. Judge Pregerson died a month before the first Hernandez opinion was even filed. The opinion stated that, prior to his death, Pregerson “fully participated in this case and formally concurred in this opinion after deliberations were complete.”
Monday’s opinion is authored by Judge Nguyen and concurred in by Judges Kim Wardlaw and Milan Smith, Jr. Like Nguyen’s dissent from the first opinion, the Ninth Circuit now concludes there was constitutionally ineffective assistance of counsel, but the constitutional violation was not prejudicial.
