On this year's Supreme Court docket, waiting for a disposition to be revealed, perhaps soon, is a case in which the Ninth Circuit Court of Appeals, the most—reversed of the federal appeals courts, is once again in effect on trial.

Imagine a classroom full of unruly teenagers who take pleasure in breaking the rules.  This image fairly describes the circumstances when a large segment of the Federal Ninth Circuit Court of Appeals convenes to hear and decide cases.  Amidst this legal anarchy, Judge Stephen Reinhardt assumes the role of the Lord of Misrule, and the consequences cry out for strict adult supervision. 
 
The United States Supreme Court has just agreed to review the notorious Ninth Circuit decision rendered in late 2005, Musladin v. Lamarque.  This decision was authored by Judge Reinhardt.  Judge Reinhardt is a 1980 Jimmy Carter appointee, further illustrating that the plain man from Plains, Georgia is a gift to this country that just keeps on giving.

The facts in Musladin as set out in the Court documents are relatively straight forward.  Musladin was divorced and unhappy about the level of his child support and lack of custody of his son.  He had threatened to kill both his ex—wife, Pamela, and her fianc Tom Studer, unless custody arrangements and his child support were changed.  In May of 1993 Musladin went to the California home of his ex—wife for visitation with his son.  An argument with Pamela ensued.  He pushed his ex—wife to the ground.  When his ex—wife screamed, Tom Studer and her brother came outside to help her.  Musladin pulled a pistol from his car.  When Studer ran, Musladin shot him in the back.  He followed Studer.  Studer had crawled under a truck and that is where he was when Musladin shot him in the head killing him instantly.

After a high speed chase Musladin was arrested and then tried for murder in California state court.  During the trial several members of the Studer family sat behind the prosecutors and wore buttons roughly three inches in size.  These buttons had a picture of the deceased, Tom Studer.  On these buttons there was no caption, no sign, no slogan; nothing but his picture.  The jury discounted Musladin's self defense claim and convicted him of first degree murder.

Musladin appealed this verdict to the California Court of Appeals on the ground that  members of the Studer family wearing buttons with Studer's picture at trial were inherently prejudicial, and this denied him an impartial jury.  The California Court of Appeals upheld the conviction and the California Supreme Court refused to hear this case.  Musladin then challenged the decision by filing a petition seeking a writ of habeas corpus in the United States District Court.  This petition was filed under the Anti—terrorism and Effective Death Penalty Act (AEDPA), which was enacted in 1996.  The United States District Court ruled against Musladin, and he appealed to the Ninth Circuit Court of Appeals.  This appeal gave the Ninth Circuit and Judge Reinhardt an opportunity to work their legal magic. 

In a two—to—one decision authored by Judge Reinhardt, the Court found that the buttons worn by the Studer family members with nothing on them but the deceased's picture had denied Musladin his right to 'an impartial jury free of outside influences.'  (A later motion for an en banc hearing was denied.)  Judge Reinhardt held that the buttons were inherently prejudicial, and that unless Musladin is retried in 90 days after the writ is issued, Musladin, the man who executed Tom Studer, must be released.  (This deadline has been stayed pending the appeal to the United States Supreme Court.)

American jurisprudence requires not just a court's decision but the reasoning that the court uses to arrive at its decision.  This written decision provides a mechanism for the evaluation of the decision, and this process is supposed to better insure against arbitrary and capricious decisions.  It is this evaluation of this Court's decision and its reasoning that is so troubling to any reasonable person.

The initial decision of Judge Reinhardt issued by the Court refers to Tom Studer as the 'victim.'  The quotation marks are those of the Judge.  When the decision was later re—issued this designation was changed to the 'deceased person' without the quotation marks.  That Judge Reinhardt could feel compelled to use quotation marks and have the slightest doubt about the victim status of one who was shot in the back and then in the head as he lay on the ground speaks volumes about the quality of the mind at work here.

Then there is the statutory analysis of Judge Reinhardt.  A defendant convicted in state court can seek habeas relief in federal court only consistent with the statutory provisions of AEDPA.  The statute forbids federal courts from granting habeas relief to a defendant unless the state court's decision is

'contrary to, or involved in unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.' 

A fair reading of this statute requires that the defendant must satisfy each of these elements.  He must establish that the state court decision is unreasonable, or that it is clearly contrary to established federal law and that this law has been enunciated by the United States Supreme Court.  Furthermore, there is a presumption in favor of the reasonableness of the state court decision, especially when all of these statutory elements are not strictly met by the petitioning defendant. 

Judge Reinhardt's analysis of the law and his application of these principles to the facts of this case are the least deferential to state courts and the most activist possible.  He acknowledges the two primary Supreme Court cases and their principles which address the general issues of the requirement of an impartial jury and circumstances that may prejudice this right. He ignores the required presumption and asserts that the state court decision was 'objectively unreasonable.' 

He states that these buttons worn voluntarily by spectators at trial are as prejudicial as state—mandated orange prison jump suits worn by defendants at trial, which the Supreme Court has ruled were prejudicial.  Judge Reinhardt then states that these buttons worn by the Studer family with a face on them can be more prejudicial to Musladin than buttons worn in a rape trial with an explicit verbal message:  'Women Against Rape.' These buttons worn at a rape trial were found to be prejudicial by this same Ninth Circuit Court.  For Judge Reinhardt a picture of a face is more prejudicial than a written message.

The Court of Appeals of the State of California inartfully referred to the buttons as an 'impermissible factor' that should be 'discouraged,' but refused to find these buttons overly prejudicial.  Judge Reinhardt leaps to the conclusion that something that should be 'discouraged' is inherently prejudicial.  This Court ignores the understanding long recognized by courts that errors occur in trial, that no trial is perfect, and that the occurrence of something to be 'discouraged' without an affirmative showing of prejudice is generally not grounds for reversal.  As the brief submitted by the State to the United States Supreme Court points out, an inartful presentation of the established standard by a lower court does not change that standard.

But for sheer sophistry, for that pre—determined decision searching for a legal rationale, for the enshrining of personal opinions of a judge masquerading as the rule of law, nothing can top Judge Reinhardt's analysis of the buttons themselves.  Remember, these were relatively small buttons with nothing more on them than a picture of the victim, Tom Studer. 

For Judge Reinhardt, the picture on the buttons

'essentially 'argue' that Studer [the victim] was the innocent party and that the defendant was necessarily guilty; that the defendant, not Struder, was the initiator of the attack, and, thus, the perpetrator of the criminal act.' 

This all becomes the 'specific message that the button conveys ....'  For Judge Reinhardt,

'a reasonable jurist would be compelled to conclude that the buttons worn by Struder's family members conveyed the message that the defendant was guilty.' 

A picture of a face on a button makes arguments?  It portrays innocence, and implies guilt, and identifies the aggressor?  In the wonderland of Judge Reinhardt's mind, a three inch wordless button with a face on it becomes an argumentative bullhorn. Had Studer been seriously wounded instead of killed, he himself could have sat behind the prosecutor and this would not be deemed prejudicial.  The principle of the 'willing suspension of disbelief' has been brought from the theatre by Judge Reinhardt into the jurybox.  If only the O. J. Simpson jury were so malleable and amenable to the State's power of suggestion.

In its brief for the United States Supreme Court, the State of California makes many salient points about the jury and the lack of evidence of any prejudicial effect of the buttons.  As the State points out, there was no evidence that the jurors actually saw the buttons, nor that any juror recognized who was depicted on the button, nor that those who wore the button were affiliated with the victim, nor that those wearing the buttons had any first—hand knowledge of the crime itself.  All that Judge Reinhardt really had to work with here were the unsubstantiated arguments of defense counsel asserting prejudice, and an imperial judicial philosophy which cannot bring itself to defer to either state courts or legislative bodies.

So, the Supreme Court has announced that it will hear this case, and it may try, yet again, to tame the unruly adolescents on the Ninth Circuit Court of Appeals.  It may try again to discipline this most overturned of all federal Courts of Appeal.  At this point we can only hope for a reasoned defense of the rule of law and one that goes against the arbitrary and capricious proclivities of Judge Reinhardt and his kindred spirits. 

I suspect that I know which four justices on the Supreme Court will support Judge Reinhardt's finding of prejudice and which four justices will vote to overturn this decision of the Ninth Circuit.  For the fifth and deciding vote, much will depend on the mood of Justice Kennedy on that particular day, and this fact is a travesty in its own right.                  

Henry P. Wickham, Jr. is an attorney and regular cotributor to American Thinker.