Thursday, August 10, 2006

Comer v. Schiro (9th Cir. - Aug. 10, 2006)

This one's interesting (and short), and something you don't see every day. A published order in which one of judges -- Judge Rymer -- tells her colleagues: "Get off your duff and write the opinion already, this appeal has been going on for years." Whereas the other two members of the panel respond with a paragraph that says, in essence: "Hey, this is a toughie. We're working on it. Leave us alone."

Of course, there's an additional subtext to all of this. It's a death penalty case. And one in which the defendant wants to die. Judge Rymer, not surprisingly, wants the sentence executed. Quickly. By contrast, the other two members of the panel -- Judges Ferguson and Pregerson -- want the exact opposite. Hence the delay.

What's perhaps most interesting is that the spat goes public. That's Judge Rymer's call, of course, since she's almost certainly the one who called for the published order. Still, an interesting dynamic. One that you'll occasionally see when, as here, you have a panel that's addressing a hot-button issue (especially the death penalty) and that contains two hard-core members of one side of the political aisle and one member on the other side.

That said, I think that Judge Rymer's decision will have an effect. Even though the appeal has been pending for many years, I bet you'll now see an opinion on the merits in this case -- and one that, I'm quite confident, will end up finding a violation of constitutional rights -- within the next several months.

Stay tuned.