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USCA9 Drops Henry Like A Hot Potato

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The strange case of Arizona murderer Graham Henry continues.

Three weeks ago, I noted that the U.S. Supreme Court had taken the unusual step of directing the Court of Appeals for the Ninth Circuit to answer Arizona's petition for an extraordinary writ.  The state was challenging the Ninth's decision to stay the mandate in Henry's case while it considers another case, McKinney v. Ryan, even though the panel in Henry had decided that it really makes no difference to that case how McKinney comes out.

Two days after the Supreme Court's order, the Ninth reheard McKinney en banc.  Today, the Chief Judge issued an order in Henry saying,

Having heard the argument in McKinney, and having considered the record and the briefs filed by the parties in this case, the Court concludes that: (1) the facts and legal arguments are adequately presented in the briefs and record, and that the decisional process would not be significantly aided by oral argument; and (2) a stay of proceedings and further en banc consideration in Henry is not necessary to secure or maintain the uniformity of the Court's decisions.

Therefore, this case is submitted for decision without oral argument. Fed. R. App. P. 34(a)(2). Henry's motion for a stay of proceedings pending the issuance of a decision in McKinney is DENIED. En banc proceedings in this case are concluded. The Clerk is directed to issue the mandate.
I don't know what the Ninth will say to the Supreme Court in its response next Wednesday, but in substance it will probably amount to something equivalent to the famous words of Gilda Radner, "Oh, never mind."

I don't seriously believe that it was the oral argument in McKinney that changed their minds.  Oral argument is rarely that illuminating.  Everything they needed to know was in the papers.

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