Sometimes it pays to be in the minority.
This is about the closest vote you'll ever see in the Ninth Circuit. It's a 4-4-7. With the (first) 4 votes establishing the (now-) controlling law.
It's a Confrontation Clause case. The district court allowed the defendant to tell the jury that the witness (who had struck a deal) stood to gain some sentencing benefit by testifying for the government, but did not allow the defendant to let the jury know that by testifying, the witness was avoiding a mandatory life sentence. So the jury knew some degree of incentive, but not the particulars. Does that violate the Constitution?
Judge Paez writes the "majority" opinion. Which only has four votes: his, Chief Judge Schroeder's, and Judges Fisher and Gould. A group of judges that one might generally describe as the "moderates who often lean right in criminal cases" crowd. Judge Paez holds that, with respect to one of the defendants, this wasn't error, since the jury got to know most (but not all) of the details anyway, but with respect to the other, this was error, but it was harmless. In other words, took the middle road: affirmed the convictions while marginally allowing some benefit to a criminal defendant.
Judge Hawkins, joined by Judges Pregerson, Reinhardt, and Wardlaw, writes the "liberal" opinion, which would find error and reverse the convictions. Whereas Judge Graber, joined by Judges Rymer, Tallman, Clifton, Bea, M. Smith, and Ikuta, writes the "conservative" opinion, which would find no error.
So some basic math here. 4 + 4 > 7. So the moderate four plus the liberal four outvote the conservative seven. Hence the convictions are affirmed, but precedent is established that sometimes, precluding the defendant from testifying will constitute error.
Close. Very close. For those that think that who gets drawn for the en banc court doesn't matter, this case is a shining counterexample. Ditto for those who think -- as the Ninth Circuit has now concluded -- that there's no difference between a 15- and 11-judge en banc court. Sometimes, it matters. A lot.
