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Deadline for Review of Gabrion

Following up on the prior posts here and here, AP reports from Grand Rapids, Michigan:

Federal prosecutors in Grand Rapids have until Sept. 16 to decide whether to appeal a decision that overturned a rare death sentence.

An appeals court set the deadline Tuesday, about a week after one of its three-judge panels threw out the death penalty for Marvin Gabrion.

In 2002, Gabrion was convicted of drowning a woman in a national forest. The jury sentenced him to death, an option in federal court.

But the appeals court says the sentencing phase needs to start over. In a 2-1 decision, the court said defense lawyers should have been able to argue that Gabrion would not have faced a death sentence if the case had been prosecuted in state court.

The government's options include asking the full appeals court to look at the case.

Technically, the options are to (1) petition for rehearing by the panel; (2) petition for rehearing en banc (the last sentence above); or (3) petition for a writ of certiorari from the Supreme Court.  Option (1) is essentially useless, as none of the three judges on this panel will change position.  Skipping (2) for (3) is permissible, but SCOTUS takes a dim view of it, and I don't expect it.  Go for (2).

In the upper echelons of the present Administration, there will probably be a tussle between anti-death-penalty ideologues supporting "none of the above" (letting the decision stand), and political operatives who know that would be politically disadvantageous and will support option (2).  (Career prosecutors and people who care about justice would also support (2), but there are few, if any, in the upper echelons.)  I expect the political operatives to win.

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