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December 12, 2006

Major capital ruling from en banc Fifth Circuit

I just got word from a helpful reader that the Fifth Circuit has issued its en banc opinion in Nelson v. Quarterman, which addresses Penry issues in the wake of the Supreme Court's Tennard decision.  Unfortunately, the Nelson opinion is not yet on the Fifth Circuit's web site yet, but I'll provide a link (and commentary) once I see the opinion.

UPDATE:  Nelson is now available at this link.  The pdf of the opinion runs 161 pages, and there appears to be six opinions: one for the en banc court, one long concurrence and four different dissents.  Judge Edith Jones is the author of what appears to be the chief dissent, so perhaps that gives readers a clue as to the outcome.  Any commentary by any folks with the energy to read all the Fifth Circuit's wisdom will be greatly appreciated.  Here's how a helpful reader describes the ruling in an e-mail to me:

This is a major victory for capital habeas petitioners, a surprising about-face in the Fifth Circuit's Penry jurisprudence, and a fascinating decision in light of the Supreme Court's recent cert grants on cases raising similar issues.

MORE:  Capital Defense Weekly here calls Nelson "perhaps the most important Fifth Circuit decision since I started posting online a decade ago."

December 12, 2006 at 12:16 PM | Permalink


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If anyone wants to read an example of judicial & personal humility, see Judge Dennis's concurence:

"I acknowledge my mistake
at the panel level . . .."

"I now see that . . .."

"I became dissuaded of that view by my imperfect understanding . . .."

"I erroneously performed what I thought was a proper [ ] examination but which in reality was an improper hypothesization . . .."

He also does something unheard of, he thanks his law clerks "I am grateful to my law clerks who worked with me on these opinions and especially to three, Kevin Kneupper, Jelani Jefferson, and Bradley Meissner, who helped in preparing this en banc concurring opinion."

Long story short, this is a huge win for the capital habeas bar.

Posted by: anony | Dec 12, 2006 5:33:58 PM

That's news! Hope to read that soon. I guess my my fastlaw isn't so fast after all because Nelson did not show up there yet.

Posted by: Major Mori | Dec 13, 2006 7:34:32 PM

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