Not so fast, 9th Circuit

CRITICS OF THE U.S. 9th Circuit Court of Appeals, such as outgoing California Atty. Gen. Bill Lockyer, are celebrating that liberal-leaning court’s latest rebuff by the Supreme Court. By a 9-0 vote, the justices on Monday overturned a finding by the 9th Circuit in a San Jose case that a convicted murderer had been denied a fair trial because relatives of the victim came to court wearing small buttons bearing the dead man’s photograph.

This page, which strongly opposes capital punishment, is nevertheless glad to see the 9th Circuit’s wrist slapped for improperly applying the law as it is written.

According to the Supreme Court, that is what the 9th Circuit did when it ruled that Mathew Musladin, who was convicted of killing his ex-wife’s fiance in 1994, should be granted a new trial because three relatives of the victim, Tom Studer, displayed his image on buttons.

Strictly speaking, the Supreme Court did not rule that the display was harmless to Musladin’s chances of a fair trial. Rather, the issue was whether the 9th Circuit was correct to conclude that a state court decision affirming Musladin’s conviction involved an “unreasonable application” of federal law as defined by the U.S. Supreme Court.

In an opinion by Judge Stephen Reinhardt, the 9th Circuit found in 2005 that Musladin’s conviction ran afoul of Supreme Court rulings that prejudicial displays by the prosecution -- such as forcing a defendant to wear prison clothes and shackles in court -- could jeopardize a fair trial. Reinhardt also cited a 9th Circuit precedent involving female spectators who wore “Women Against Rape” buttons, seeing it as a natural extension of the prison-garb decision.

Not so, said Justice Clarence Thomas in Monday’s majority opinion. The Supreme Court’s previous decisions about prejudicial displays concerned only “state-sponsored courtroom practices,” not the conduct of spectators, which, Thomas said, was “an open question in our jurisprudence.”

In a separate opinion, Justice Anthony M. Kennedy suggested that in the future the court might want to prohibit the wearing of buttons and similar symbols as “a preventative measure” even though, in this case, there was no indication that the buttons created an atmosphere of intimidation. But Kennedy agreed with Thomas -- as did all four liberal justices -- that the 9th Circuit essentially jumped the gun by acting as though the Supreme Court had settled the issue.

This might seem like a technical argument between courts, but it 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.