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October 25, 2007

News on the Alabama execution stay from the Eleventh Circuit

The de facto execution moratorium and Alabama's effort to disrupt this moratorium today has taken another twist, I think, based on this order from the full Eleventh Circuit in the Seibert case.  Here is the full text of the order:

A member of this court in active service having requested a poll on the Petition for Rehearing En Banc filed by the Defendants-Appellees on 25 October 2007, and a majority of the judges of this court in active service (available and not recused) having voted in favor of granting a rehearing en banc, IT IS ORDERED that the above cause shall be reheard by this court en banc.

The opinion and stay entered by the panel on 24 October 2007 is hereby VACATED.  The en banc Court sua sponte hereby STAYS the execution of the Plaintiff-Appellant pending further en banc consideration of this case.

I think this means that Alabama cannot yet go forward with the defendant's execution, but I think it also means that a fuller ruling will be coming soon from the full Eleventh Circuit.  Of course, whatever that Court does will likely get appealed by the loser to the Supreme Court.

October 25, 2007 at 03:38 PM | Permalink


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Good for Alabama.

Posted by: federalist | Oct 25, 2007 5:12:43 PM

What was the point of vacating the panel's stay, if not merely to slap the panel's face? The panel's stay would have been good for only as long as the en banc court thought it should remain.

I'm a white collar defense attorney.

Posted by: B | Oct 25, 2007 5:21:15 PM

Vacating the panel opinion is not unusual when a court grants rehearing en banc. It eliminates the opinion as precedent binding on the district courts, but it's not necessarily a slap.

Posted by: Kent Scheidegger | Oct 25, 2007 5:27:49 PM

Kent is right on this one. I suspect we will eventually see a denial of rehearing en banc. The the 11th circuit's order effectively wipes out Seibert as precedent, a one time stay for one inmate and not anything the next inmate can use to get a stay. I suspect the order also dramatically reduces the chance of the State getting cert as it eliminates any precedential value of the panel's stay.

Posted by: nony | Oct 25, 2007 6:02:56 PM

I understand, but the order granting rehearing en banc said they were vacating both the panel opinion and the panel stay.

Posted by: B | Oct 25, 2007 6:46:54 PM

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