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June 17, 2009

Lots of interesting discussion in Second Circuit's refusal to go en banc in federal capital case

The Second Circuit in a brief order today in US v. Fell, No. 06-2882 (2d Cir. June 17, 2009) (available here), denies en banc review of a federal death sentence.  That simple decision generates a 35-page concurrence from Judge Raggi and a 24-page dissent from Judge Calabresi (and two other small dissents). 

The work by Judges Raggi and Calabresi cover a wide array of important and interesting issues ranging from capital jury selection to prosecutorial discretion.  Because I am on the road, I do not have time to comment on their debate beyond calling it a must-read for all sentencing fans.  (Also, SCOTUS fans might also take note of the fact it appears that Judge Sotomayor opted not to join any of these opinions commenting on the denial of en banc review in Fell.)

June 17, 2009 at 12:41 PM | Permalink


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The U.S. Court of Appeals for the Second Circuit has finally denied rehearing en banc in United States v. Fell. I was wondering what was taking them so long. Now we know. Judge Calabresi dissents with a bizarre theory that... [Read More]

Tracked on Jun 17, 2009 5:13:57 PM


Yet another 2nd circuit product I am unable to read due to the pdf not being formatted for text to speech. I wonder if that is a violation of the ADA.

Posted by: Soronel Haetir | Jun 17, 2009 1:03:39 PM

you can format pdf for text to speech? How do you do that?

Posted by: | Jun 17, 2009 3:46:02 PM

The only thing I did not like about Judge Calabresi's dissent was that he did not cite my article, When the Federal Death Penalty Is “Cruel and Unusual,” 74 U. CIN. L. REV. 819 (2006), in which I argue that it constitutes "cruel and unusual punishment" in violation of the Eighth Amendmant to apply the federal death penalty to a crime that occurred in any State that does not authorize capital punishment.

Posted by: Michael J.Z. Mannheimer | Jun 19, 2009 9:46:04 PM

That's right, Michael, because some judge doesn't cite your moonbat article, you get bent.

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