In Andrews v. Davis, the Ninth Circuit today affirms the grant of habeas corpus relief to a condemned inmate whose death sentence the California Supreme Court affirmed 30 years ago (People v. Andrews (1989) 49 Cal.3d 200) and whose state habeas petition the Supreme Court rejected 13 years later (In re Andrews (2002) 28 Cal.4th 1234).

Holding that “[t]his case presents the type of ‘extreme malfunction[ ]’ in the operation of a state’s criminal justice system that justifies the intervention of a federal habeas court,” the majority of an 11-judge en banc panel finds that the Supreme Court unreasonably applied clearly established federal law in concluding the defendant received constitutionally adequate counsel at the penalty phase.  The majority blamed counsel for not finding out and informing the jury that the defendant “was repeatedly subject to brutal abuse” as a child “at the Alabama Industrial School for Negro Children known as ‘Mt. Meigs’ — a segregated, state-run institution that, in the words of one witness, was a ‘slave camp for children’ ” or that, as a teenager, the defendant “was in the custody of Alabama state institutions so degrading that federal courts later found the conditions in those institutions violated the Eighth Amendment’s prohibition on cruel and unusual punishment.”

Three judges dissented, asserting the Supreme Court reasonably concluded there was no prejudice from counsel’s deficient performance.

The Ninth Circuit’s opinion is consistent with the dissent of Justice Joyce Kennard (joined by Justice Carlos Moreno) in the post-appeal Supreme Court habeas proceeding.  (In re Andrewssupra, 28 Cal.4th at p. 1266.)

The federal appellate court has criticized Supreme Court death penalty decisions before.  (E.g., here.)  More often, however, because of a highly deferential federal habeas corpus standard of review, the Ninth Circuit doesn’t interfere.  (E.g., here and here.)