It's a death penalty case. 2-1. The majority opinion, written by Judge Kozinski, starts out by saying:
"With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom. Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood—just as his ex-wife had seen him do to 'play[ ] with the female sexual organs of a deer.'"
Whenever a criminal opinion begins by describing the horrible facts of the case, you know which way the author's coming out. (Judge Rymer's the third judge on the panel, so you know she's on board for the way Judge Kozinski begins.)
The dissent, written by Judge Reinhardt, doesn't shirk from those horrible facts, and indeed, embraces them. He begins his dissent with: "The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous. That alone should have been a signal that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband. I agree with the trial judge who sentenced Leavitt to death that 'the fact that' such a person 'would do this act leaves one[ ] asking why.'" And says that the reason why was because Leavitt had organic brain disorder and that the failure of his attorney to request a MRI that the court-appointed neurologist had recommended was ineffective assistance of counsel.
Proving that, in many cases, your view depends very much on your perspective. Same facts. Different take.
