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Richter v. Hickman, No. 06-15614 (8-10-09)(en banc). In an en banc decision, the 9th (Reinhardt writing) granted petition's writ for IAC. The petitioner was alleged to have committed murder in a robbery gone bad. He alleged self defense. The case turned on circumstantial and forensic evidence. Indeed, the issue of blood -- serology, pathology, and spatter -- became a central evidentiary issue in the case. Despite this, defense counsel failed to conduct any forensic investigation whatsoever on the blood evidence. He decided on a defense without looking at the blood evidence, and without consulting any experts. If he had, expert testimony would have helped support his version of the events, and would have enabled defense counsel to cross effectively, and present his own experts and evidence. Dissenting, Bybee and others argue that the majority failed to recognize the pressures faced by trial counsel (time and resources) and that he should be excused because he did present a viable coherent defense.

U.S. v. Monghur, No. 08-10351 (8-11-09). "The Thing," said the defendant in a monitored call from the jail, was "in the green." The call was to a friend, and referenced something in a girlfriend's apartment. The police (8 of them) paid a visit, got consent to search the apartment from the girlfriend, and in the closet in a room where the defendant sometimes slept, a green plastic container was found with -- surprise -- a firearm in it. The police seized it. Eventually the defendant entered a conditional plea and took the issue of seizure up. The 9th (Tallman joined by Hug and Hawkins) held that the seizure violated the Fourth Amendment. Sure the police had consent to search the apartment, but they did not have consent to look into sealed containers where the defendant or any person had a reasonable expectation of privacy. There was also no exigent circumstances despite the fact that children lived in the apartment. The government's presented argument was that the defendant had consented because he knew the phones were monitored. The 9th hung up on this argument. It was unavailaing because the defendant did not identify the contraband. Indeed, he spoke in a code (i.e. "the thing" meant firearm -- not the most sophisticated code, but still the word could have meant a variety of things). This is different than telling a police officer that contraband was somewhere, which has been held as consent. Strangely, despite the Fourth Amendment violation, the 9th did not order suppression, but instead vacated the conviction, and remanded so the district court could consider the exclusionary rule in light of Herring, 129 S.Ct. 695 (2009). In Herring, the Supremes stated that the high costs of the exclusionary rule are triggered where the police action is "sufficiently deliberate" to warrant exclusion as a remedy. Negligence might not be enough (it was not in Herring, which involved a mistaken entry in a computer database). Still, it seems that the police should have sealed the apartment, as the 9th alludes to, and ask for a warrant based on the information and experience.

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