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USCA2 Capital Case

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The U.S. Court of Appeals for the Second Circuit has finally denied rehearing en banc in United States v. Fell. I was wondering what was taking them so long. Now we know.

Judge Calabresi dissents with a bizarre theory that the rules for voir dire in federal capital cases should vary depending on whether the state does or does not have capital punishment. Nobody seems to doubt that the district judge applied the general rule correctly. If that were not strange enough, Judge Calabresi apparently would include in the "not have" category those states where the people have chosen through the democratic process to have capital punishment, but their choice has been overridden by judicial imperialism, e.g., New York.

Judges Pooler and Sack also have shorter dissents. There is a concurring opinion by Judge Raggi, joined by Chief Judge Jacobs and Judges Cabranes, B.D. Parker, Wesley, and Livingston.

The USCA2 site is a bit quirky, so I have mirrored the opinion here. It is a scan of various paper documents, not a single PDF document like we get from most courts.

The active judges not listed as joining any of the opinions are Judges Sotomayor and Katzmann. Judge Hall is recused. With eleven nonrecused active judges, the six who joined the concurrence were sufficient to defeat the rehearing motion, so we don't know how the two nonjoiners voted.

Over at SL&P, commenter Soronel Haetir notes that USCA2's scanned image files are inaccessible to those who depend on text-to-speech conversion.  I tried to OCR this file to make it accessible, but it didn't work. Sorry.

3 Comments

Might just be my computer, but I cannot open it.

Since this is about the federal death penalty, I'll try again and ask if anyone has so much as a shred of information on what's going on with the federal lethal-injection lawsuit? Federal executions have been on hold for three years now.

yankalp, perhaps a letter to your elected representatives is in order.

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