Rarely do I read a case in which I think that the defendant may well be actually innocent. But this is one of them.
You've got to read the whole opinion to get a real sense of whether Rachel Jernigan was rightly convicted of the bank robberies for which she was sentenced to 168 months in prison. One can briefly say that there was pretty much no evidence whatsoever against her other than the fact that the bank robber was fairly unique -- a short (five foot tall) Hispanic or Asian woman, which is not your typical culprit in these types of crimes -- and that Jernigan fits this description.
Apart from the wholesale lack of any hard evidence against her, what really makes one think that Jernigan may well be innocent -- and I'm ignoring, as did the Ninth Circuit, the fact that she passed a lie detector test with flying colors -- is that, immediately after she was incarcerated, someone else (Juanita Rodriguez-Gallegos) who was a five-foot tall Hispanic woman robbed multiple banks in the same area allegedly robbed by Jernigan, including one of the very same banks.
This is a Brady case. The U.S. admits that this information was known to it but not disclosed to the defense -- or presented to the jury. So the only question is whether this information was material; i.e., whether it might have made a difference at the trial. Again, you've got to read the whole opinion to understand fully why it might well have, but a couple of sentences in footnote six of the majority opinion go a long way in this regard: "The question is whether a reasonable probability existed that the jury would have arrived at a different result if provided with the excluded evidence. More specifically, the question is whether the jury, when presented with nothing more than shaky, cross-racial eyewitness identifications, unsupported by any physical evidence, would have arrived at a different result when informed that a woman described in uncannily similar terms — terms describing a most unlikely bank robber — was robbing banks in the same area just days after Jernigan’s incarceration."
It's, again, pretty unusual that I leave a case thinking: "Wow, I think there may well be an innocent person in prison here." But that's where I stood at the end of this one. For what it's worth, I also imagine that I'm not alone. Which is the only reason, in my view, why this utterly fact-specific case -- with no novel legal issues whatsoever -- was taken en banc. As well as why the vote comes out the way it does, and Rachel Jernigan provided with a new trial.
One final thing. I occasionally (though only occasionally) appreciate dissents that, for lack of a better phrase, somewhat insult the majority. That don't just say that the majority is wrong, but that do so in a way that's a bit attacking; in some cases, that are even smarmy. So I'm definitely no shrinking violet when it comes to what's in a dissent.
That said, if you're going to be a little bit of a jerk about it, a decision that's -- as here -- 13-2, with you as half of the 2, is typically not your best vehicle. Which is something that Judge Bea, who writes the dissent here, doesn't seem to particularly appreciate. Yes, I know, as usual, he's not very happy that the majority orders a retrial for the criminal defendant. And, sure, he can (and does) articulate reasons for his position.
But if it's a criminal case, and the only person you can get to join your side is Judge O'Scannlain, and if there are not only 13 votes on the other side, but (critically) those judges voting to grant relief to the criminal defendant include (as here) Judges Kozinski, Rymer, Bybee, and Callahan, you may want to tone your dissent down a bit. When that's the lineup, and when some judges are voting quite the opposite of what you might expect, you may well want to think that maybe they've got a real point. And, sure, dissent if that's what you believe. But perhaps write the thing a little less smugly. Because it may not be the 13 that's totally missing the point here.