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September 5, 2007

Looooong split Ninth Circuit ruling in federal death penalty case

The Ninth Circuit has been able to get a lot done with kids back in school.  As revealed on this opinion page, the Circuit has issued 18 published opinions in just the last two days.  And, as How Appealing flagged here, this group has included a few interesting sentencing opinions.

Today, the Ninth Circuit produced an opinion in a federal death penalty case, US v. Mitchell, No.03-99010 (9th Cir. Sept. 5, 2007) (available here), that is so long I cannot quite tell if it is interesting.  I can tell that Judge Rymer's majority opinion runs a full 100 pages, and Judge Reinhardt's dissent runs another 30.  Kudos to anyone able to slog through this copious capital controversy and highlight in the comments anything notable going on in the Mitchell opinions.

September 5, 2007 at 01:58 PM | Permalink


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» Character and Aggravating Factors from Crime and Consequences
Professor Berman yesterday links to the recent 9th Circuit opinion in U.S. v. Mitchell, affirming the death penalty sentence for a defendant involved in a double murder. As the opinion notes, during the sentencing phase, Mitchell offered this mitigatin... [Read More]

Tracked on Sep 6, 2007 8:48:09 AM


That was a depressing read. Do we really need 100+ page opinions?

Posted by: | Sep 5, 2007 4:06:14 PM

The life of one person is worth 10. If they lived a really virtuous life (i.e. made over $10,000,000 per year for a minimum of 20 years), maybe 15. Anything more is a waste.

Posted by: S.cotus | Sep 5, 2007 5:00:35 PM

On first read I see two notable issues here, either of which could be reason for the matter to go en banc, or less likely, cert. With that said, it is again, just on first read and there may be more "there" that didn't jump out at me.

The first is a "procedurally clean" issue that the SCOTUS punted on last term, prosecutorial comments in the penalty phase closing. Here the government's comments were hideous. Starting at the bottom of page 11651, comments such as "[w]hat I like to call mitigating factors are excuses for murder because we have free will” and “information furnished in this case [to the Attorney General] as to this defendant, it rose to that level [to seek the death penalty] . . . . It was . . . rational, well-reasoned, based on information that you don’t have before you . . ." were not only improper but should have readily resulted in a new trial.

The other issue of note, at least to me, is summarized in footnote 12 by the dissent:

"Rule 43(a)(3) states “Unless this rule . . . provides otherwise, the
defendant must be present at . . . sentencing.” The rule is limited by
43(c)(1)(B), which permits waiver of that provision “in a noncapital case,
when the defendant is voluntarily absent during sentencing.” As the
majority concedes, Rule 43(c)(1)(B) by negative implication does not permit
a capital defendant to waive his presence during sentencing by being
voluntarily absent. Because Rule 43(c)(1)(B) does not apply to capital
defendants, and the facts do not support any of the other reasons for
waiver, see Fed. R. Crim. P. 43(c)(1)(A) and (B), we are presented with
a straightforward question about the meaning of “sentencing” as the term
is used in Rule 43(a)(3)."

Other than those two issues, there are also some potentially interesting jury selection issues and jury selection issues (Batson related issues, a somewhat compelling jury pool composition issue, exclusion of "magic words" in the jury instructions, etc.). Those issues, however, have been punted on so many times that it would be difficult to believe that a circuit en banc or the SCOTUS on cert. would want to hear / address the issues unless it was doing so only after reaching questions one and two above.

As to a 100+ page opinion, at least it was well written and logically constructed. Maybe a better option is what some courts do and only "publish" part of an opinion with the remaining portions of the opinion being "unpublished."

Posted by: karl | Sep 5, 2007 7:01:05 PM

Karl, "hideous" is a description more apt for what this animal did, not a prosecutor's argument. "Hideous"??? Surely you jest. The capacity for capital defense attorneys to engage in self-parody never ceases to amaze.

Posted by: federalist | Sep 5, 2007 7:33:52 PM

The defendant was convicted of a crime. Maybe his actions were bad. That isn’t the issue. But, the question is whether the prosecutor’s comments were bad or not. I tend to think that these comments were pretty much the worst a prosecutor in this day and age could make. So, “hideous” is an apt description.

It is true that the lower classes do some quite hideous things. This is their nature. But we hold the upper classes to a much higher standard, and so it is far easier to cross the "hideous" line.

Whatever the case, courts routinely statements during closing arguments. But, they are generally reluctant to reverse on such grounds, which simply encourages more pushing of the envelope.

Posted by: S.cotus | Sep 6, 2007 1:26:42 AM

"Maybe his actions were bad" . . . . I'll just let that piece of nonsense speak for itself.

Posted by: federalist | Sep 6, 2007 5:05:10 PM

Karl, attempting to opt out of stare decisis and the normal development of the law is never a good option. Aside from the fact that the practice makes the court appear untrustworthy, the practice is typically applied to the detriment of politically unpopular parties (such as our clients).

Posted by: rothmatisseko | Sep 6, 2007 8:08:26 PM

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