No big surprises in today's Supreme Court opinion in McDaniel v. Brown. In this post last May, I wrote, "How is Judge Wardlaw's opinion wrong? Let me count the ways." Today the Supreme Court pretty much ticked off the same ways, although it skipped the exhaustion/default point I noted. In September, when they took the case off the argument calendar, I speculated on the disposition. "Will they just vacate the decision to allow the Ninth to consider the
alternative ground of ineffective assistance decided by the District
Court but not by the Court of Appeals? That's my guess." Bingo.
But why did this case ever get to the Supreme Court of the United States? Here we have an opinion that is so obviously wrong that not a single Justice thinks it was correct, and even the party who won in the Court of Appeals abandoned the theory of that decision. The case was significant enough for a grant of certiorari in the high court. The crime involved here was a truly atrocious one. It was a crime that a good many people, including President Obama, think should be a capital offense.
So why did the Ninth Circuit deny rehearing en banc? The state petitioned, but no judge called for a vote. Given the strength of Judge O'Scannlain's dissent, I can only surmise that he did not call for a rehearing vote because he knew it would lose.
The criteria for a Court of Appeals to grant rehearing en banc are similar to those for the Supreme Court to grant certiorari. Compare Supreme Court Rule 10(a) with Federal Rule of Appellate Procedure 35(a). The Courts of Appeals should be more liberal with their en banc grants than the Supreme Court is with its certiorari grants simply because they have a much smaller pool of cases to consider. So how is it possible that this case made it on to the Supreme Court's radar screen for certiorari but was so obviously a loser for en banc that not a single judge even called for a vote?
The Ninth Circuit, as an institution, has not shown the will to rein in its rogue panels when they err in favor of the prisoner. There have been a few exceptions, and we have noted them on this blog when they occur. These remain exceptions, unfortunately, to a pattern of winking at error and injustice whenever they favor the perpetrators of crime.
Today's decision by the Supreme Court is not only a rebuke to the panel majority, it is an indication of systemic failure of the Ninth Circuit as an institution. Get your act together, folks.
But why did this case ever get to the Supreme Court of the United States? Here we have an opinion that is so obviously wrong that not a single Justice thinks it was correct, and even the party who won in the Court of Appeals abandoned the theory of that decision. The case was significant enough for a grant of certiorari in the high court. The crime involved here was a truly atrocious one. It was a crime that a good many people, including President Obama, think should be a capital offense.
So why did the Ninth Circuit deny rehearing en banc? The state petitioned, but no judge called for a vote. Given the strength of Judge O'Scannlain's dissent, I can only surmise that he did not call for a rehearing vote because he knew it would lose.
The criteria for a Court of Appeals to grant rehearing en banc are similar to those for the Supreme Court to grant certiorari. Compare Supreme Court Rule 10(a) with Federal Rule of Appellate Procedure 35(a). The Courts of Appeals should be more liberal with their en banc grants than the Supreme Court is with its certiorari grants simply because they have a much smaller pool of cases to consider. So how is it possible that this case made it on to the Supreme Court's radar screen for certiorari but was so obviously a loser for en banc that not a single judge even called for a vote?
The Ninth Circuit, as an institution, has not shown the will to rein in its rogue panels when they err in favor of the prisoner. There have been a few exceptions, and we have noted them on this blog when they occur. These remain exceptions, unfortunately, to a pattern of winking at error and injustice whenever they favor the perpetrators of crime.
Today's decision by the Supreme Court is not only a rebuke to the panel majority, it is an indication of systemic failure of the Ninth Circuit as an institution. Get your act together, folks.
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