Twenty-one years ago, the Supreme Court affirmed the death sentence in People v. Marks (2003) 31 Cal.4th 197 for 1990 murders and attempted murders. It later summarily denied a habeas corpus petition after a superior court rejected a claim under Atkins v. Virginia (2002) 536 U.S. 304 that Marks could not be executed because he was intellectually disabled. The Supreme Court had ordered the superior court evidentiary proceeding.

Today, a 2-1 Ninth Circuit panel concluded in Marks v. Davis that, even under a highly deferential standard of review, and contrary to a district court ruling, the superior court’s rejection of two defense expert witness’ testimony was “objectively unreasonable.” (Because the Supreme Court summarily denied the habeas petition, the Ninth Circuit “ ‘ “look[ed] through” the unexplained decision to the last related state-court decision that does provide a relevant rationale’ and presume[d] that the state supreme court adopted the lower court’s reasoning.”) It ordered the district court to conduct a de novo review of the Atkins claim.

The Ninth Circuit found unavailing a number of other defense habeas claims.

There were two concurring and dissenting opinions. One judge felt the lead opinion didn’t go far enough, asserting that the superior court had also been objectively unreasonable in rejecting a third defense expert’s testimony. Another judge, however, found nothing wrong with the state court proceedings at all, saying “the majority strains both the record and the law, giving Marks another bite at his decades-old Atkins claim.”

The appeal decided by today’s opinion was argued in December 2022. The district court judge who is partially reversed is now a Court of Appeals colleague of the panel members, current Ninth Circuit Judge Lucy Koh. Also, Judge Koh is married to former Supreme Court Justice Mariano-Florentino Cuéllar.

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty decisions.


“From the bench, an ‘impotent silence’ ”