“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In December 2019, Trump Ninth Circuit judges dissented from an en banc rehearing denial regarding a death penalty case in which the court remanded the case due to ineffective assistance of counsel. The case is Kayer v. Ryan.

George Kayer is an Arizona man who was convicted of murder in 1994. Kayer’s life preceding that charge was already challenging: he was dyslexic, and struggled with untreated mental psychiatric disorders and drug and alcohol addiction. He didn’t graduate from high school and enlisted in the Navy instead, but was discharged by his Lieutenant Commander for his “severe personality disorder.” During his early adulthood, his struggles with mental health and addiction worsened, and he developed a gambling problem.

During his trial, Kayer was represented by counsel, but his counsel did not prepare for the penalty phase of the trial. Kayer obtained new counsel who again did not prepare for the penalty phase of the trial. Because of this, scanty mitigating evidence about Kayer’s background was presented and he was subsequently sentenced to death.

At a post-conviction review, Kayer raised an ineffective assistance of counsel claim. The judge, who also presided at his trial and sentencing, ultimately determined that Kayer received professional and competent representation and was not prejudiced in any way.

Kayer petitioned the Arizona Supreme Court for review, but was denied. Kayer then sought federal habeas corpus relief from the district court, and was again denied. He appealed.

In a 2-1 decision, the Ninth Circuit ruled that the no-prejudice ruling by the post-conviction review judge was objectively unreasonable and Kayer’s counsels’ performance during the death penalty phase of the case was egregious. A petition was filed for a full panel Ninth Circuit review of the case. The full court was advised of the petition for rehearing en banc, a vote on rehearing was held and the matter failed to receive a majority of votes from the Ninth Circuit justices in favor of a rehearing. Trump judges Bennett, Nelson, Bade, Collins, Lee and Bress strongly dissented from the rehearing denial. They argued that the post-conviction review was objectively reasonable and there was possibility for disagreement on whether the mitigating evidence would change the outcome.