Tuesday, January 15, 2019
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Ninth Circuit Retracts Habeas Relief for Slayer/Rapist
Nguyen—Who in 2017 Dissented to Opinion Finding Prejudice to Defendant From Lawyer’s Failure To Present Diminished Capacity Defense—Now Writes for Unanimous Panel in Denying Writ
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday repudiated its grant more than a year ago of habeas corpus relief to a man convicted of two murders committed after he raped and sodomized his victims, holding, upon rehearing, that even though his lawyer was remiss for not looking into a possible diminished capacity defense, the defendant would have been convicted, in any event.
Yesterday’s decision affirms the denial of habeas relief by District Judge Ronald S.W. Lew of the Central District of California to Francis Hernandez, with respect to the guilt phase of his trial.
Hernandez committed his crimes against two young females, Edna Bristol and Kathy Ryan, five days apart, in early 1981. He was convicted in Los Angeles Superior Court in April 1983.
Writing for the panel, Circuit Judge Jacqueline H. Nguyen said:
“We find that trial counsel’s performance was deficient in one respect—he should have investigated and considered presenting a diminished capacity defense based on Hernandez’s mental condition. We hold, however, that Hernandez did not suffer any prejudice as a result of counsel’s deficient performance. Because the evidence of his specific intent to rape and kill both victims was overwhelming when compared to the relatively weak diminished capacity evidence that counsel could have presented, but failed to present, there was no reasonable probability of a different outcome in this case.”
Nguyen was joined by Senior Circuit Judge N. Randy Smith and Circuit Judge Kim Wardlaw.
2017 Opinion
On Dec. 29, 2017, the Ninth Circuit filed its initial opinion in the case. There, Nguyen agreed with the majority that the performance of Hernandez’s trial counsel was deficient, but dissented from its conclusion that the defendant was prejudiced and said she would deny the petition.
At the time that opinion was filed, a judge concurring in it had already died. A footnote advises that Circuit Judge Harry Pregerson “fully participated in this case and formally concurred in this opinion after deliberations were complete.”
Since then, the author of the opinion, Stephen Reinhardt died.
Reinhardt’s Opinion
Reinhardt said in the 2017 opinion:
“The ultimate question in this case is whether there is a reasonable probability—that is, even less than a fifty-fifty chance—that at least one juror would have declined to convict Hernandez of first degree murder if his counsel had presented a diminished capacity defense based on mental impairment. Counsel failed to present this defense because he was ignorant of the law.”
Reinhardt noted that Lew relieved Hernandez of a death sentence based on his conclusion that, if evidence of his mental state had been presented, at least one juror would have voted against that penalty. He wrote:
“A similar analysis leads us to conclude that had the jury been told of the evidence of Hernandez’s mental impairments and that such evidence could as a matter of law provide a defense to first degree murder, at least one juror would have had reasonable doubt as to whether Hernandez could have formed the requisite mental state for that offense. Put differently, our confidence in the outcome of Hernandez’s trial is undermined: we believe it likely that at least one juror would have concluded that Hernandez suffered from the mental impairment required for a successful defense of diminished mental capacity.”
Nguyen’s View
In the opinion filed yesterday, Nguyen said—as she did in her 2017 partial dissent:
“Ample evidence of Hernandez’s specific intent to rape and kill both Bristol and Ryan supported the jury’s verdict. First, the two crimes were committed within days of each other and were strikingly similar, strongly suggesting premeditation. Bristol and Ryan were around the same age—twenty-one and sixteen, respectively—and both had shoulder-length blonde hair and similar body types….Both victims were enticed into Hernandez’s van, raped, and sodomized….Hernandez taped Bristol’s wrists, ankles, and mouth with duct tape; tape was also found near Ryan’s body.”
After reciting other similarities, Nguyen declared:
“The substantial similarities between the crimes showed that Hernandez intended and premeditated both rapes and murders.”
The jurist also pointed to Hernandez’s confession.
Hernandez also claimed his lawyer’s performance was deficient because he did not put on testimony by a witness, Laura Kostiuk, as to prior consensual sex between Hernandez and Ryan. Nguyen responded:
“At best, Kostiuk may have testified that on a prior occasion, Hernandez and Ryan engaged in consensual sex. Such evidence has minimal probative value, especially in light of the significant evidence that, on the evening of her death, she was brutally raped and sodomized.”
The case is Hernandez v. Chappell, 11-99013.
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