by Lance T. Izumi, Fellow in California Studies
Pacific Research Institute
November 13, 2002

Announcer lead: Time for Perspectives. Lance Izumi says that the federal Ninth Circuit Court of Appeals has veered out of the legal mainstream.

Recently, in three major cases the U.S. Supreme Court not only overturned decisions by the San Francisco-based federal Ninth Circuit Court of Appeals, it also castigated the appellate court for excessive judicial activism. Further, the Supreme Court’s rulings were unanimous, uniting both the conservative and liberal wings of the top court, an indication of just how far the Ninth Circuit has veered out of the legal mainstream.

One of the cases involved a California man named John Viscotti who first robbed two co-workers, then viciously shot one to death and wounded the other. At his sentencing hearing, it was revealed that Viscotti had several years earlier stabbed two other people including a pregnant woman. The jury handed down the death penalty. On appeal, the California Supreme Court upheld Viscotti’s conviction and death sentence.

When Viscotti appealed to the Ninth Circuit, however, the federal judges overturned his death sentence, not because of any doubt about Viscotti’s guilt, but because Viscotti’s lawyer had not told jurors about his client’s difficult family background. Unfortunately, not only did the Ninth Circuit decision undermine the principle of personal responsibility, it also flouted federal law.

In 1996, the federal Anti-Terrorism and Effective Death Penalty Act was enacted to limit review by federal judges of death penalty rulings by state courts unless those decisions were clearly unreasonable and contrary to established constitutional law. In reversing the Ninth Circuit decision, the U.S. Supreme Court said that Viscotti’s cold-blooded methods coupled with evidence of prior violent crimes was devastating. The Supreme Court also pointed out that the Ninth Circuit had selectively weighed the facts to mischaracterize the state court opinion. The Supreme Court concluded that the Ninth Circuit contravened the federal law by substituting its own judgement for that of the California state courts.

Some change may be coming, however. With control of the U.S. Senate changing hands, President Bush’s nominees to the Ninth Circuit may now be approved. That would give greater balance to a court that really needs it.

Lance Izumi is the Director of Center for School Reform at the California-based Pacific Research Institute for Public Policy. He can be reached via email at lizumi@pacificresearch.org.