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November 28, 2012

Noting the notable (moderate? liberal?) position of new Ninth Circuit judges in capital habeas case

The California legal newspaper The Recorder has this interesting new piece about a notable vote in a capital case by some new Ninth Circuit judges.  The piece is headlined, "Obama Appointees Issue Measured Protest to Vote Clearing Way for Execution," and here are excerpts:

Three new Obama appointees to the U.S. Court of Appeals for the Ninth Circuit weighed in Tuesday on their first hotly contested death penalty case.   Judges Paul Watford, Morgan Christen and Jacqueline Nguyen voted on the side of staying an execution — but distanced themselves from a blast leveled by seven of the court's most liberal judges at two of their own colleagues.

In Stokley v. Ryan, 09-99004, the court narrowly turned aside a call to rehear en banc a decision clearing the way for the Dec. 5 execution of Arizona inmate Richard Dale Stokley, who kidnapped, raped and strangled two 13-year-old girls.  He had lost his bid for habeas corpus last year, but asked the Ninth Circuit to recall the mandate and send his case back to U.S. district court based on a ruling from the U.S. Supreme Court in January on attorney abandonment.

A three-judge panel rejected Stokley's motion Nov. 15 in an order signed by Judges M. Margaret McKeown and Carlos Bea.  They ruled that although Stokley had had serious difficulties with his state post-conviction attorney, she had not "abandoned" him within the meaning of Maples v. Thomas, nor could he show prejudice even if he'd been abandoned.  Judge Richard Paez dissented....

Last week the full court fell a few votes short of rehearing the case en banc, and on Monday Judge Stephen Reinhardt filed a dissenting opinion blasting both the panel's reasoning and tactics....

Reinhardt was joined by Paez and Judges Harry Pregerson, Kim McLane Wardlaw, William Fletcher, Raymond Fisher and Marsha Berzon.  Fletcher issued a separate opinion, joined by those same judges, saying Stokley's claims "may or may not prove to be winning claims," but "we should not allow the state of Arizona to kill Stokley before they have been properly considered."

Watford, who just joined the court from Munger, Tolles & Olson in May, wrote a third opinion.  Only one paragraph long, it noted simply that the questions surrounding prejudice remain unresolved.  "These important and unsettled issues should be resolved by the court sitting en banc," he wrote.  Obama appointees Nguyen, who was confirmed in May, and Christen, confirmed in December, concurred in Watford's opinion.  So did Pregerson, Wardlaw, Paez, Fletcher, Fisher and Berzon — but not Reinhardt.  Obama's two other appointees, Mary Murguia and Andrew Hurwitz, did not sign any of the concurrences.

Generally, 15 of the 28 active Ninth Circuit judges must vote to take a case en banc. Although 10 judges publicly dissented from the Stokley en banc vote, it's possible other judges voted the same way, as a few members of the court prefer not to issue public dissents from denial of en banc review.

November 28, 2012 at 08:58 AM | Permalink

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