It's a testament to how my day's been that this came out at 10:00 a.m. this morning and I'm just now able to write about it.
That's true despite the fact that I don't have much to say. It's an en banc vote that failed. It's a dissent from the denial by Chief Judge Kozinski. Joined not by the usual right-wing suspects. But rather, this time, by a bevy of suspects from the the other side of the aisle.
Kozinski's often acerbic, biting and (sometimes) funny. Not this time. This time, he's short, poignant, and with touching reflection.
Here's his opinion. Three paragraphs total:
"Just how obvious does a state court’s constitutional error have to be when a man’s life is on the line? According to the panel majority, indisputably obvious, which is 'beyond a reasonable doubt' stood on its head. Judge Thomas’s powerful dissent explains how the majority’s decision to 'throw up [its] hands and declare the record too ambiguous to definitively interpret one way or the other,' Amended Dissent at 49 n.3, contravenes Supreme Court authority and undermines our circuit law. [Citations]. No need to repeat his arguments; we adopt them, chapter and verse.
The issue will not go away. There are many more cases in the pipeline where state courts in our circuit applied a causal nexus test before affirming a sentence of death. We can’t long continue down the path forged by the majority, which forces panels to choose between two materially different standards of review in causal nexus cases: the newly minted 'clear indication' standard and our traditional approach of scrutinizing the record and asking whether it 'appears' that a constitutional violation occurred. Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008).
We must suture this fissure in our circuit law, and soon. Tragically for Robert Poyson, when we do so, it will come too late to save him. But come it will."
Twelve judges sign onto what Chief Judge Kozinski writes. That's a lot. But it's a number less than half of the court. Which made all the difference to Poyson. He's killed.