It should not be news that a federal court of appeals sitting "en banc" has corrected an erroneous decision by a three-judge panel. That's what the en banc process is supposed to do. However, in the Court of Appeals for the Ninth Circuit it has long been rare that a rogue panel decision wrongly overturning a death sentence was even reviewed en banc, much less corrected. At times, petitioning for such a rehearing has been considered such an exercise in futility that some AG offices would not even bother but would instead go straight the Supreme Court. (The Supremes don't like that.)
Today we have the Arizona case of Eric Mann. Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.
Today we have the Arizona case of Eric Mann. Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.
Note to sleazoids. If your girlfriend knows that you are guilty of double murder, it is not a good idea to beat her up so that she leaves you and goes to the police.
The case was in many ways completely routine. The judgment was affirmed on appeal. On state collateral review, the defendant claimed his trial lawyer was ineffective for not introducing mitigating evidence that has nothing to do with the crime. The state courts didn't buy it. The federal district judge didn't buy it either.
Then Mann caught a break. His panel on appeal to the Ninth Circuit was Thomas, Reinhardt, and Kozinski. Experienced Ninth Circuit watchers do not need to know anything about the merits of the case to know to a very high probability, from the makeup of the panel alone, that the death sentence was overturned. Judge Kozinski dissented:
On the "bottom line" -- whether Mann's sentence should be overturned or not -- today's decision was 10-1, with C.J. Thomas dissenting alone. Judge Clifton's opinion was joined in full by Judges Graber, McKeown, Wardlaw, Callahan, N. R. Smith, Watford, and Owens. Judges Christen and Berzon agreed with the dissent in part but joined the majority on the result.
Has the Supreme Court chastised the Ninth Circuit enough on AEDPA that it is finally going to correct the rogue panels routinely, sparing the Supreme Court that burden and correcting erroneous judgments that the Supreme Court does not have time to correct? One can hope.
The case was in many ways completely routine. The judgment was affirmed on appeal. On state collateral review, the defendant claimed his trial lawyer was ineffective for not introducing mitigating evidence that has nothing to do with the crime. The state courts didn't buy it. The federal district judge didn't buy it either.
Then Mann caught a break. His panel on appeal to the Ninth Circuit was Thomas, Reinhardt, and Kozinski. Experienced Ninth Circuit watchers do not need to know anything about the merits of the case to know to a very high probability, from the makeup of the panel alone, that the death sentence was overturned. Judge Kozinski dissented:
Once more unto the breach. Time and again, we have been admonished for disregarding Congress's clear instruction that federal judges in habeas proceedings must adopt a "highly deferential standard" under which "state-court decisions [are] given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted). In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court's otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA's restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.Here is where it gets different. The court took the case up for en banc review. Unlike all the other circuits, Ninth Circuit "en banc" is not really the full court (which is too large) but rather the chief judge plus 10 of the active judges chosen at random. Chief Judge Thomas was therefore on the big panel, but Judges Reinhardt and Kozinski were not.
On the "bottom line" -- whether Mann's sentence should be overturned or not -- today's decision was 10-1, with C.J. Thomas dissenting alone. Judge Clifton's opinion was joined in full by Judges Graber, McKeown, Wardlaw, Callahan, N. R. Smith, Watford, and Owens. Judges Christen and Berzon agreed with the dissent in part but joined the majority on the result.
Has the Supreme Court chastised the Ninth Circuit enough on AEDPA that it is finally going to correct the rogue panels routinely, sparing the Supreme Court that burden and correcting erroneous judgments that the Supreme Court does not have time to correct? One can hope.
This is the first time in a long while I have fainted.