Nothing from the Ninth Circuit this morning. So let's go back and look at a nice little en banc decision from a tiny while ago.
What a mess.
Five members of the en banc panel think that the death penalty petitioner's claim here is utter crap, and that the Ninth Circuit should so hold. Thereby getting the guy quickly to his appointment with the needle.
(Of course, "quickly" is a relative term. The underlying murder was nearly a quarter century ago. There's been a mistrial, a second trial, appeals, habeas petitions, a remand by the U.S. Supreme Court, etc. in the meantime. But five members of the Ninth Circuit at this point want it all over and done with.)
But five ain't six. It's a minority of eleven. So five dissent.
Judge Pregerson writes for four. But he nonetheless authors the plurality opinion. Despite the fact that four is less than five. (Last time I checked, anyway.) Articulating his vision of what the law is and why petitioner's claim isn't utter crap, and hence why they're remanding to the district court.
Judge Nguyen concurs. Agreeing that there should be a remand. But disagreeing with everyone -- both the plurality and the dissent -- about the contours of existing law.
Judge Watford concurs as well. Preferring to say nothing about either the content of the law or the potential merits (or lack thereof) of the petitioner's case. Just remading.
In short, it's your classic 4-1-1-5. (*Sarcasm alert*)
You may also find the lineup interesting. You might think that it's a pretty "liberal" panel draw. The four in the plurality, for example, are Fletcher, Pregerson, Reinhardt and Christen. That's a group you tend to like when you're sentenced to be killed.
But the rest of the panel is far from your hard-core conservative crowd. The dissenting five, for example, are Judges Graber, Kozinski, Gould, Bea and Murguia; i.e., a majority of the judges in dissent were appointed by Democratic presidents. And, yes, I hear you saying that some of the dissenters may not be hard-core liberals who hate the death penalty. But, still, not exactly total Republican right-wingers either.
A funky little plurality opinion. So much mess for a simple remand.