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April 15, 2007

Examining votes of circuit judges in capital review

The Cincinnati Enquirer has this strong article examining the work of the Sixth Circuit in capital habeas cases entitled "The politics of life and death: An inmate's fate often hinges on luck of the draw."  Here is how it begins:

Paul Gregory House pinned his hopes for survival on the U.S. 6th Circuit Court of Appeals in Cincinnati five years ago when he challenged his death sentence for rape and murder.  He won. 

Two years later, House's case returned to the 6th Circuit for what amounted to a new hearing on the same issues. The only change was the addition of four conservative judges to the court.  He lost.

Same evidence. Same arguments. Different outcome. House learned the hard way that a federal death-penalty appeal can be a game of chance.  If the judges assigned to a case were appointed by Democratic presidents, odds are good they will overturn a death sentence because of new evidence or mistakes made during the trial. If the judges were appointed by Republicans, the chances are slim.

That's especially true at the 6th Circuit, the powerful and deeply divided court that decides death penalty appeals from Ohio, Kentucky and Tennessee.  An Enquirer analysis of the court's death-penalty decisions since 2000 shows that 6th Circuit judges consistently voted along partisan lines, just as they did in House's case:

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time.  Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.  Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

"That is very stark," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., a nonprofit group that has been critical of capital punishment.  "It makes blind justice look like part of the political system."

April 15, 2007 at 09:05 AM | Permalink


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Tracked on Apr 15, 2007 11:46:18 PM


House is guilty. Anyone who reads anything about the case has to know that.

Posted by: federalist | Apr 15, 2007 1:06:51 PM

Interesting view there, Federalist -- your conservative buds on the Supreme Court disagreed...

But then again, it's not surprising that you would discount the DNA evidence suggested House wasn't responsible -- your kind doesn't like science, or any evidence that gets in the way of your drive to execute & torture.

Posted by: non-federalist | Apr 15, 2007 4:43:03 PM

Federalist, you're an idiot. And this is coming from a real Federalist. Stop embarrassing yourself and judicial conservatism.

Posted by: bill | Apr 16, 2007 8:11:48 AM

"Same evidence. Same arguments. Different outcome."

Frankly, I doubt it. I've never seen a court look at the same evidence and same arguments twice. I'll bet some intervening event took place, aside from the change in Court personnel.


Posted by: Mark | Apr 16, 2007 12:23:07 PM

Mark, if I recall correctly, a 3 judge panel first heard the case. The Sixth Circuit then heard it en banc. Thus, it was: "Same evidence. Same arguments. Different outcome."

Posted by: Tim | Apr 16, 2007 12:27:53 PM

The article says that two years separated these arguments to the Sixth Circuit. Two years between the panel decision and the en banc? I'm STILL doubtful. I'm going to check the docket.

If you are right, then the article was woefully written in failing to explain the difference between panel consideration and en banc consideration. Even that's not an apples-to-apples comparison.


Posted by: Mark | Apr 16, 2007 4:31:27 PM

I checked the docket. My doubts described above were justified.

Here are the highlights from the docket:

10/31/01 -- case argued to panel (affirming)
6/12/02 -- case argued to en banc court
11/22/02 -- en banc court issues certified question to TN Supreme Court
3/10/04 -- en banc court affirms dist. ct. (and panel) judgment
6/16/06 -- Supreme Court reverses en banc CoA
1/16/07 -- CoA remands case to district court for further proceedings

So, the en banc court affirmed the panel. How is that a "different outcome"? It's not.

If the writer of the article describes these as "Same evidence. Same arguments. Different outcomes.", then the writer is not being either fair or accurate regarding the nature of the proceedings and the decisions of the CoA, thus undermining the entire article.

Obviously, I'm not saying that the Sixth's capital-case decisions don't reflect the biases of the judges deciding these case. I think that they do. Just as I think that the judges' political biases affect their sentencing decisions, and business-case decisions, and Fed. R. Civ. P. decisions -- all decisions. Our judges are the product of a totally political system. It should be unsurprising that their decisions reflect those political inputs. Frankly, I'm occasionally surprised by decisions that DON'T reflect the Presidential and Senatorial political biases that got particular judges on the CoA in the first place. Elections matter.


Posted by: Mark | Apr 16, 2007 4:54:57 PM

Gee Bill, I am so hurt. Not.

The House case is an egregious overreach by the Supreme Court. First of all, given the victim's daughter's testimony, the likelihood that the husband did it is remote. Second of all, House testified in federal court, and didn't do so hot. Third, the guy had no credible explanation for why he was near the scene. I could go on and on. This guy did it, and he might get over. Fortunately, even if he does, he's probably in no position to harm anyone again.

As for other things, I will not apologize for anything I have written. I think in the death penalty arena federal courts have performed badly, from the incredible nonsense surrounding the Cooper case to the minute detail ascribed to the Constitution by the likes of Jeremy Fogel to ill-informed Supreme Court Justices berating a deputy AG for the fact that the Florida Legislature did not drop everything to read up on the flawed Lancet study.

I take our collective right to govern ourselves seriously, and I think that in the criminal law arena in general, and the death penalty in particular, the federal courts have not been as willing to let us do so as they should. I recoil when idiot federal judges like Anna Diggs-Taylor (and read her opinion regarding "wiretaps", and you'll see why I call her an idiot) tell us how we can defend ourselves, to say nothing about smart federal judges (like Stephen Reinhardt) who openly flout the law, or about judges who belong in jail for abusing their power (like Manuel Real).

Maybe I am different from most lawyers, but I don't think that federal judges (or any judges for that matter) are any more immune from criticism than any other government office-holder. And that means we get to call them idiots.

Mr. Real Federalist, I'll give you one f'rinstance that apotheosizes my disdain for many in the federal judiciary. Stephen Breyer. Breyer has asserted (coyly, I might add) that the Constitution prohibits executions after long stays on death row. In my view, by asserting such preposterous nonsense (and it is preposterous nonsense), that Breyer has no business deciding any death case, as such an opinion (which allows death row inmates to run out the clock) shows an inherent bias against our right as a society to impose this penalty. Either Breyer must be stupid or he is a lawless judge. Which is it?

Posted by: federalist | Apr 17, 2007 1:24:11 AM

You are correct. That was sloppy reporting. The initial panel affirmed the District Court's denial of the writ by a 2-1 vote. The en banc court also affirmed. The Supreme Court's opinion clearly describes this history. 126 S.Ct. 2064.
A more accurate description would be "same evidence, same arguments, Republican appointees on the en banc panel vote to affirm, Democratic appointees on the en banc panel vote to grant the writ." See the en banc opinion, 386 F.3d 668.

Posted by: Tim | Apr 17, 2007 10:25:22 AM

@Tim & Mark,
I believe that the article was referring to the first en banc opinion certifying the case & the second opinion affirming the District Court. The first opinion certified the case to "ascertain whether there remains a ‘state avenue open to process such a claim' in this case", 311 F.3d, at 76, presumably to clear the obstacle and grant the writ under Herrera. The majority were all democratic. When the state supreme court refused certification, the en banc court, with a majority of republican judges, affirmed the district court.

Posted by: Another Tim | May 10, 2007 6:15:58 PM

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