“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.

All but one of the ten Trump judges on the Ninth Circuit, including Mark Bennett, Ryan Nelson, Bridget Bade, Kenneth Lee, Daniel Collins, Daniel Bress, Danielle Hunsaker, Patrick Bumatay, and Lawrence VanDyke, but not Eric Miller, were more than half the judges who argued in dissent that a three-judge panel decision granting post-conviction relief in a death penalty case was wrong and that the Ninth Circuit’s review of state court decisions should become more “deferential.” The majority of the full Ninth Circuit rejected that view and denied rehearing in Kipp v Davis.

Martin Kipp was convicted of two different capital homicides in two California counties committed three months apart and prosecuted separately. In the first trial, prosecutors submitted evidence of both crimes, claiming that the information about the other crime was “other-act evidence” that helped show “identity and intent.” The trial court found that the two were sufficiently similar that evidence of both could be considered, despite the general rule prohibiting evidence of other acts by an accused person in a criminal prosecution.  Kipp was sentenced to death, and the state supreme court agreed on appeal.

A three-judge panel of the Ninth Circuit, however, granted Kipp’s petition for post-conviction relief in a 2-1 decision, ruling that the admission of the “other-act” evidence violated his due process rights. The court recognized that its review of the state court judgments was limited under federal statute, and found that, as required by federal law, the state supreme court had made an “unreasonable determination of the facts” in deciding that there was a “highly distinctive” similarity between the two crimes. The panel wrote that the state court had “failed to mention” even one of a dozen differences between the two crimes, which “far outnumber the similarities,” such as the victims’ race, whether Kipp and the victim were “seen together socially” before the crime, whether property was stolen, whether objects were used in committing the crime, whether there were head injuries, whether there were “defensive wounds,” and whether Kipp had been drinking before the crime. Although federal courts must give “deference” to state courts in such cases, the majority wrote, the Supreme Court has ruled that such “deference does not imply abandonment or abdication of judicial review.” Because the state court “apparently ignored” the differences between the two cases and “solely mentioned” the similarities, the majority concluded that the state court’s fact finding process was “defective” and it had made an “unreasonable determination” of the facts.

Although the state did not pursue the case further, at least one member of the Ninth Circuit requested that the full court consider whether to rehear it. Nine Trump judges and five others, just barely less than half of the judges on the circuit, voted to do so. In their dissent from denial of rehearing, the dissenters excoriated the Ninth Circuit’s case law  concerning federal post-conviction relief in death penalty cases, rhetorically and sarcastically asking whether the court will “ever learn from its past mistakes.” The dissenters claimed that the Kipp case was a prime example of the court failing to give appropriate “deferential review” to state court decisions under the federal post-conviction statute, and that the panel majority had improperly “substituted its own judgment” and “reweighed the evidence” in the case.  The fact that the state supreme court did not specifically discuss the differences between the two crimes did not mean that it failed to consider them, the dissent maintained, and the panel should have shown “deference” to the state court and rejected federal post-conviction relief. In an additional dissent joined by Trump judges Nelson and Bumatay and several others, Trump judge VanDyke complained that the court should recognize its “regular and improper interference with state criminal justice systems” in such death penalty cases and decide to “do something about it,” starting with rehearing the Kipp case.

Several judges in the majority explained what was wrong with the dissenters’ view. Judge Richard Paez explained that the dissent had made a “misguided attack” on the Kipp decision and on the Ninth Circuit’s precedents in this area. Contrary to the dissent, Paez went on, the state supreme court had made only a “single, cursory statement” about the argument concerning the crucial differences between the two crimes, which clearly “fails to demonstrate” that the state court made a reasonable determination of the facts and instead shows the opposite. Kipp was “effectively on trial for two crimes” at once, Paez wrote, clearly violating due process. Despite the dissent’s claims, Paez continued, the Kipp decision as well as other Ninth Circuit rulings in this area show the proper degree of “deference” to state courts while appropriately declining to simply abdicate federal “judicial review.” This was particularly true with respect to this case, Paez noted, where the state “expressly declined to argue for rehearing even after we invited it to do so.”

There is no question that Kipp will be punished for his reprehensible behavior; as several judges noted, the Ninth Circuit had rejected a request for federal post-conviction relief with respect to the other murder he committed, for which he also received the death penalty. But the nearly successful effort by almost all the Trump judges on the Ninth Circuit to use the Kipp case to severely weaken and limit the court’s post-conviction review of death penalty cases remains very troubling.