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Sunrise in the West?

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In the last two weeks, the Ninth Circuit has granted rehearing en banc in two criminal cases. Edwards v. LaMarque is an ineffective assistance case. Here are the panel decision and the order granting rehearing. United States v. Curtin involves a pedophile who trolls chat rooms looking for young girls and had pedophilia literature on his PDA when he got caught. The issue is the admissibility of that literature. Here are the opinion and the rehearing order.

What is remarkable here is that the rehearing petitions were both filed by the prosecution after the defendant prevailed before the panel. We have seen so many cases where the Ninth denies rehearing even when a panel decision is patently wrong (see, e.g., Belmontes and Musladin, discussed here), that many prosecutors have decided that even petitioning for rehearing en banc is hopeless and gone straight to certiorari from the Supreme Court.

Could it be that, with the recent appointments, People of Sense now constitute a majority on the Ninth Circuit? That may be too much to hope for, and maybe I am grasping at straws. After decades of darkness, though, it is tempting to see any ray of light as the breaking of the long-overdue dawn.

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Maybe Kent's right . . . . but I have a far more cynical take. First, the pedophile case is not only wrong on the law (the relevance analysis is seriously botched), it's wrong on the facts. No way, no how the Ninth, with all of its terrible publicity is going to let this case be a pinata for Congressmen, the public etc. to whack around. Given there is a movement afoot to split the Ninth, cases like this, where they get it obviously wrong on the law and the wrongness benefits a child sex offender are fodder for those who want to pillory the Ninth.

Second, one of the criticisms of the Ninth is that it doesn't do enough en banc hearings to deal with the errors created by the 3-judge panels. This interrupts that trend.

Third, the judges on the Ninth cannot be unaware of their track record with the Supreme Court. The cases, Musladin, Bockting and Belmontes will likely be reversed (Musladin and Bockting should be unanimous). I doubt seriously they want another botched pedophile case in front of the Supreme Court.

In addition, the Chief Judge of the Ninth, a noted opponent of splitting the circuit, may be in some hot water herself over her handling of the Manuel Real nonsense. I'm sure the last thing Schroeder wants is more bad publicity.

I think that Bush's appointments are bearing fruit, but I also think that outside pressure is convincing some of the outliers to rein in the outlandishness.

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