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A Respondent Court Is Asked to Respond

Usually, the way to have a lower court's decision reviewed by a higher court is to appeal.  In the U.S. Supreme Court, an actual "appeal" in the technical sense is usually not available, and a petition for writ of certiorari is used instead.

Sometimes, though, neither of these procedures is available, and the aggrieved party must resort to an "extraordinary writ," a petition for a writ of prohibition or mandate.  In form, this is a new suit by the petitioner against the lower court itself, designated the "respondent."  In practice, the opposing party in the lower court is designated the "real party in interest," and that party defends the lower court's action.  That avoids the need for a court to appear as a party, generally regarded as unseemly.

And now, for something completely different....

In re Ryan, U.S. Supreme Court No. 14-375, is a petition by Arizona's prison chief against the Ninth Circuit for sitting on a case after it should be over.  As usual, the opposing party in the court below, the Arizona Federal Defender on behalf of murderer Graham Henry, filed an opposition.  But yesterday, the Supreme Court asked the Ninth Circuit itself to file a response.
The trail goes back to one of the worst decisions in modern Supreme Court history, Lockett v. Ohio (1978).  Without a shred of basis in the text or history of the Constitution, the Supreme Court conjured up a constitutional right of capital defendants to throw everything including the kitchen sink into the penalty phase and argue it is mitigation.  As Justice Thomas noted in his concurrence in Graham v. Collins, some defendants were even claiming they had been denied their constitutional right to argue in "mitigation" that they are sociopaths, something any rational person would consider aggravating.

An issue in Arizona involves the courts of that state discounting "mitigating" evidence that has nothing whatever to do with the crime, i.e., lacks a "nexus."  If we applied common sense or the actual Constitution, that would be a perfectly good rule, but it is now considered contrary to the Lockett rule.  Graham Henry had a claim on that issue and lost at every stage of review:  direct appeal, three state post-conviction proceedings, habeas in the federal district court, and appeal to a three-judge panel.  The panel found that error, if any, was harmless because the state court had found a nexus between his proffered mitigation (that he is a drunk) and the crime, and that state courts found that his mitigation was insubstantial.  So the nexus rule didn't really hurt him in the circumstances of his case.

After denial of rehearing en banc and denial of certiorari by the Supreme Court, the case is over, right?  Arizona can finally carry out this long-delayed judgment, right?  Nope, the Ninth Circuit has stayed issuance of the mandate while it ponders nexus issues in another case.

In June 2013, the Supreme Court unanimously found that the Ninth had abused its discretion in a similar case, Ryan v. Schad.  I see another chastisement coming.

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