Release Date:  Januar 14, 2019
Contact:  Michael Rushford
(916) 446-0345

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A unanimous panel of the Ninth Circuit Court of Appeals today reinstated the conviction and life without parole sentence of double-murderer rapist Francis Hernandez, overturning a 2017 ruling by a divided panel of the same court which had found the conviction unconstitutional.

At issue in Hernandez v. Chappell was the earlier panel’s finding that errors made by the defense counsel during the trial prejudiced the case. The two-judge majority held that, because of this, under the U. S. Supreme Court’s 1984 decision in Strickland v. Washington, one juror might have decided not to find the defendant guilty. Applying this “one juror” standard, the court overturned Hernandez’s conviction.

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 Strickland. The panel applied a “one juror” requirement to the determination of guilt when Supreme Court precedent only supports applying it to penalty verdicts in capital cases in states where a single juror can block a death verdict.

Writing for the unanimous panel, Judge Jacqueline Nguyen declined to even mention the one-juror standard. “Even assuming that counsel’s performance was constitutionally deficient, as discussed, Hernandez did not suffer any prejudice due to the overwhelming evidence of his intent to rape and murder Ryan,” she wrote.

The case involves the brutal 1981 sexual assaults and murders of 21-year-old Edna Bristol and 16-year-old Kathy Ryan over a five-day period 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 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 by failing to attempt a mental defense the defense attorney had been ineffective. The majority further concluded that, if the mental defense had been presented, at least one juror might have been swayed to find Hernandez innocent. Because of this, they concluded, the conviction was 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, the court’s “liberal lion,” died of a heart attack at age 87.

Last July, the Ninth Circuit agreed to reconsider the earlier ruling, and on September 24, 2018, a reconstituted panel of the Ninth Circuit made up of Judge Nguyen and judges Milan Smith and Kim McLane Wardlaw heard oral argument.

“Today’s unanimous decision restores justice in a case where the evidence of intent to rape and murder was so strong that the claimed defense error would have made no difference to the jury,” said CJLF Legal Director Kent Scheidegger. “Whether a defense lawyer is required to present a meritless mental defense or not, the conviction need not be overturned when there is no reasonable chance it would have produced a unanimous ‘not guilty’ verdict,” he added.

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.