3 RULINGS BY 9TH CIRCUIT REVERSED

U.S. Supreme Court Faults A Federal Court In California For Nullifying
Convictions Of Two Killers And Granting An Immigrant Asylum.

WASHINGTON -- The U.S. Supreme Court rebuked the federal appeals court in
California on Monday for having wrongly ruled in favor of two Los
Angeles-area murderers who had appealed their convictions earlier this year.

In a pair of unanimous decisions, the high court reversed the U.S. 9th
Circuit Court of Appeals and reinstated the convictions. In a third
reversal -- also unanimous -- the justices said the 9th Circuit wrongly
granted asylum to a Guatemalan immigrant. It is rare for the high court to
reverse a lower court's ruling without hearing arguments in the case. But
the justices did it three times Monday.

In all three rulings, the justices said the federal judges in California
had exceeded their authority by second-guessing a state court or federal
immigration authorities.

"This is a kind of a slap at the 9th Circuit, and a well-deserved slap in
my view," said Kent Scheidegger of the Criminal Justice Legal Foundation in
Sacramento.

State prosecutors said that they were pleased with the decisions and that
they could speed the way to carrying out the death penalty.

California has by far the nation's largest death row, with 612 people
condemned to die. Yet executions are rare, largely because federal judges
in California have been more willing to block state officials than their
counterparts in Texas and Virginia.

"I think this is a very strong statement to the 9th Circuit that they have
misapplied the deference standard," said Dane Gillette, who heads the death
penalty unit for the California attorney general.

He was referring to a 1996 law that tells federal judges that they should
defer to the rulings of state courts.

The issue -- although technical -- is crucial in death penalty cases. It
also reflects a long-running debate over how judges should decide an
inmate's challenge to an old conviction. Under the Habeas Corpus Act, state
inmates can contest their cases in a federal court.

Some federal judges say their main duty is to uphold constitutional rights.
If a state inmate appeals, these judges will reverse a conviction if they
believe the inmate's rights were violated.

But six years ago, the Republican-led Congress, at the urging of Chief
Justice William H. Rehnquist, passed a law that amended the Habeas Corpus
Act, making it harder for federal judges to reverse a conviction that was
upheld by a state supreme court.

Proponents of the law cited the perennial disputes between California
prosecutors and the 9th Circuit as a key reason for the measure.

The new law, the Anti-Terrorism and Effective Death Penalty Act, says
federal judges should not take up an inmate's case unless the state court's
ruling was "contrary to ... clearly established federal law as determined
by the Supreme Court."

Despite that high barrier, the 9th Circuit's judges have continued to
reverse convictions from the California courts, to the dismay of state
prosecutors and the Supreme Court.

The court's action Monday revived a death sentence for John L. Visciotti,
who robbed and shot two co-workers in Orange County in 1982.

He shot the two men repeatedly at close range and left them to die in
Santiago Canyon. But one lived and testified against him. At his sentencing
hearing, jurors were told that four years earlier, Visciotti had stabbed
two other people, including a pregnant woman.

They sentenced him to die. The California Supreme Court upheld his
conviction and death sentence in 1992 and rejected a habeas appeal in 1996.

In April, however, the 9th Circuit overturned Visciotti's death sentence on
the grounds that his lawyer failed to tell jurors about Visciotti's drug
use and his "absolutely horrendous family history."

His attorney Roger Agajanian's "performance during the penalty phase was
deficient because he conducted essentially no investigation in search of
mitigating evidence about Visciotti," Judge Harry Pregerson said. He was
joined by Judges A. Wallace Tashima and Marsha Berzon.

Pregerson said he would have gone further and reversed Visciotti's
conviction because of the failures of his lawyer.

California Atty. Gen. Bill Lockyer appealed and won a speedy reversal Monday.

"This decision exceeds the limits imposed on federal habeas review," the
justices said. Rather than defer to the California courts, the "9th Circuit
... ultimately substituted its own judgment for that of the state court....
The circumstances of the crime (a coldblooded execution-style killing and
the attempted execution-style killing of another) coupled with the
aggravating evidence of prior offenses (the knifing of one man and the
stabbing of a pregnant woman trying to protect her unborn baby) was
devastating," the justices said.

These facts undoubtedly outweighed the concerns over Visciotti's miserable
family life. So, regardless of the lawyer's performance, the jury was
likely to return a death sentence in the case, the court concluded in
Woodford vs. Visciotti.

Gillette, the California state attorney, said Monday's decision clears the
way for the state to execute Visciotti. "He has jumped to the top of the
list" as the next person to die, he said.

Maria Stratton, the chief federal public defender in Los Angeles, said she
was surprised by the high court's decision.

The Visciotti case was a classic example of a defense lawyer "who had no
idea how to do a death penalty case. For the Supreme Court to ignore that
and throw it out on procedural grounds is very stunning," she said.

The second ruling revived a long prison term for a Los Angeles drug dealer
who broke into a Hollywood apartment in 1987 and shot two men, one of whom
died.

In May, the 9th Circuit, in a 2-1 ruling, said drug dealer William Packer
deserved a new trial because the judge in his original trial had pressured
a holdout juror to continue deliberations. The next day, the jury returned
a unanimous verdict against Packer.

Judges Pregerson and Stephen Reinhardt spoke for the majority in reversing
Packer's conviction. Both were appointees of President Carter. Judge Barry
Silverman, a Clinton appointee, dissented.

"Because this decision [of the 9th Circuit] exceeds the limits imposed on
federal habeas review ... we reverse," the Supreme Court said in Early vs.
Packer. The trial judge did not violate Packer's rights when he urged the
holdout to continue with deliberations, the justices said.

Recently, U.S. Solicitor Gen. Theodore B. Olson filed appeals in a series
of asylum cases to challenge the 9th Circuit. Federal law says INS
officials are to decide whether an asylum applicant faces political
persecution if sent home, but the 9th Circuit has sided with numerous
applicants whose claims were rejected.

In a third ruling Monday, the justices sided with the Immigration and
Naturalization Service and reversed the 9th Circuit's ruling that favored a
Guatemalan immigrant.

By coincidence, the high court will hear arguments in a pair of cases
Tuesday that involve California's appeals of 9th Circuit rulings.

California's "three strikes" law allows prosecutors to seek a life prison
term for defendants who commit three felonies. In some instances, the third
crime has been a petty theft. The 9th Circuit has reversed several
sentences on the grounds that this amounts to cruel and unusual punishment.

The justices will hear the state's appeal in the case of Leandro Andrade on
Tuesday.

Santa Clara University law professor Gerald Uelman said Monday's decisions
"do not bode well" for Andrade or for other state inmates challenging their
death sentences.

"If the Supreme Court is saying [the state ruling] practically has to be
irrational before you can come to a different conclusion, that is going to
affect a lot of cases," Uelman said. "They are sending a loud and clear
message to the 9th Circuit" that they "are not being deferential enough on
habeas reviews."

But the news was not all bad for the 9th Circuit.

The justices refused to shield two deputies in Humboldt County who are
being sued because they injected pepper spray into the eyes of several
protesters who tried to block the cutting of ancient redwood trees.

The 9th Circuit, in still another opinion by Pregerson, ruled this police
tactic "was plainly in excess of the force necessary under the
circumstances." Lawyers for Humboldt County urged the high court to take up
their appeal and to block the trial. But without comment, the justices
refused Monday.

Despite this action, the county remains free to appeal again if a jury
sides with the protesters.