Release Date:  September 20, 2018
Contact:  Michael Rushford
(916) 446-0345

A reconstituted panel of the Ninth Circuit Court of Appeals will hear California’s challenge to a ruling last December that overturned the conviction of double-murderer Francis Hernandez, 34 years after his trial.

At issue in Hernandez v. Chappell is the standard for determining whether a defense lawyer’s mistakes are serious enough to overturn a conviction. An earlier panel had decided that if just one juror might have voted differently that was enough, rather than requiring a reasonable probability that the whole jury would have decided differently. Although the Supreme Court has used a “one juror” rule in capital sentencing cases in states where one juror can veto the death penalty, it has never endorsed such a rule in the guilt phase where the jury must be unanimous one way or the other.

The Sacramento-based Criminal Justice Legal Foundation had joined the state to request a review of the ruling, arguing that the two-judge majority had misinterpreted the 1984 Supreme Court decision in Strickland v. Washington. “Only the U. S. Supreme Court can lower the standard set by Strickland,” said CJLF Legal Director Kent Scheidegger. “It would be a gross injustice to water down the rule to benefit this brutal killer,” he added.

The case involves the brutal sexual assaults and murders of 21-year-old Edna Bristol and 16-year-old Kathy Ryan over a five-day period in 1981, in Long Beach, California. Both victims had been beaten, tortured, and brutally raped before being strangled to death. After witnesses identified Hernandez with one of the victims on the night she was killed, a police search of his house and van uncovered the dead girl’s shoe, jewelry, fibers, items used in both the rapes, and blood, saliva, and semen that matched fluids found on both victims’ bodies. In a lengthy tape-recorded statement to police, Hernandez arrogantly claimed that he had consensual sex with both victims and that he had accidently killed them. He admitted burning the victims with a lighter and matches, biting them, and that he “probably” used a baseball bat to penetrate them both.

After three decades of court decisions upholding Hernandez’s conviction, a Ninth Circuit panel consisting of Judge Harry Pregerson, Stephen Reinhardt, and Jacqueline Nguyen reviewed Hernandez’s appeal in 2015. On November 25, 2017, Judge Pregerson, whom the Los Angeles Times described as among the most liberal federal judges in the country, died. A month later, the panel announced a divided ruling overturning Hernandez’s conviction. The majority opinion by Judge Reinhardt, and joined by the then-deceased Judge Pregerson, announced its conclusion that at least one juror might have been swayed by the ineffectiveness of Hernandez’s defense counsel, which they concluded, under prior Supreme Court precedent (Strickland v. Washington), rendered the conviction unconstitutional. Judge Nguyen’s dissent found that the prejudice threshold of Strickland had not been met and that it was “not even a close call.” In a footnote, Judge Reinhardt said that Judge Pregerson had fully participated in the case and had formally concurred with the opinion before he died. On March 29, 2018, Judge Reinhardt died of a heart attack at age 87.

On July 25, 2018, a reconstituted panel of the Ninth Circuit made up of Judge Nguyen and Judges Milan Smith and Kim McLane Wardlaw agreed to rehear the case. The Foundation’s argument against extending the “one juror” rule to the guilt phase will be considered during the new panel’s review.