Here's an opinion (in 2009). No, wait. We want to amend it. Here's our revised opinion (in 2010). Which still has the same lineup on the votes, but substitutes a new defendant, since there's a new warden.
Hold on. We want to amend the opinion again. Here's the second amended opinion. Still in 2010. Same lineup. But we also include Judge Callahan's dissent from the denial of rehearing en banc. As well as make some minor changes in the panel opinion.
Wait. We're not done. It's 2011. Time for another amendment. Here's our third amended opinion. Which has the same parties as the earlier amended opinions, but now has a different lineup. Since Judge Graber has now replaced Judge Rymer, making the opinion unanimous. With Judges Schroeder, Reinhardt, and Graber all agreeing on the result.
Though not the way you'd think. The previous opinions reversed the denial of habeas relief with respect to the death sentence. This last opinion affirms the denial of habeas relief.
That's what the panel does today in this per curiam death penalty case.
Three points. Beyond noting that I don't recall previously seeing an opinion that was amended three different times over a period lasting more than two years.
First, notice that the defendant sentenced to be executed outlives one of the members of the panel. There's irony for you.
Second, I recall reading a Senate report -- as well as an interview with Judge Reinhardt at some point -- that said that Judge Reinhardt had never voted to affirm a death sentence. Well, if that was ever true, it's not the case now. Since Judge Reinhardt's on the panel, and the panel's final opinion affirms. So Edward Schad will indeed be killed. With Judge Reinhardt's assent.
Finally, the panel's final amendment is not, as you might expect, due to a change of heart. But rather a result of a change in precedent. The Supreme Court held in Cullen that when state courts have decided an issue on the merits, federal courts can't consider additional evidence on habeas. So that's fatal -- literally -- to Schad. Which is why the Supreme Court GVR'd the second opinion and sent in back to the Ninth Circuit, which then did what it did.
Technically, I'm not sure that this is the panel's "Third Amended Opinion." Since the fact that the case went up to the Supreme Court, which then vacated the earlier result, means that this is actually the first opinion on remand. So I'm not sure I'd style it this way.
Moreover, this may actually have doctrinal (and practical) significance. The panel enters an order alongside the latest opinion by saying that no future petitions for rehearing or rehearing en banc may be filed. I'm not sure that's proper. This is a new opinion on remand. Heck, it's a different result. It's one thing to say that when you've made minor changes in an opinion, that doesn't restart the clock. It's another to say that even when a case (1) goes up to the Supreme Court, (2) gets vacated, and (3) the panel changes the result of the case, no one's permitted to ask for rehearing. You might, after all, have gotten the new result wrong. And the judges who might want to ask for a rehearing en banc -- and who might be keenly interested in hearing a petition requested such relief -- are different judges than the ones who previously tried (but failed) to take the case en banc. Since the sides are now flipped.
It's not that I don't understand the practicalities. The Supreme Court GVR'd the case. The handwriting's on the wall. Ed's going to die. But I think that, procedurally, the case is in a different posture than what exists when an opinion is simply amended. And the fact that we know that an en banc call (or request for panel rehearing) isn't going to be successful is not a sufficient reason to preclude such a request. Since, after all, that's true 99% of the time anyway.
