There was an en banc death penalty decision earlier this year that was a close one. 6-5. Neat split in the lineup. Lots of interesting holdings.
On the day the opinion was published, I said that the defendant, Gregory Dickens, would "live or die depending upon whether the vote's 6-5 or 5-6."
I was wrong.
Because four days later, the guy apparently committed suicide in his cell.
(Which, I might add, is weird. The guy actually won -- in large part, anyway -- in the Ninth Circuit. Why that resulted in his decision to take his own life is largely beyond me.)
So that's that.
Though it's actually not. The Ninth Circuit still has to decide whether to vacate its prior en banc opinion on grounds of mootness.
It decides today that, no, it'll keep the opinion intact. It had jurisdiction at the time. It's an investment of resources. Vacatur is discretionary. It lets the opinion stand.
Which is the right call. Despite the fact that Judge Callahan -- alone amongst the 11 members of the en banc panel -- dissents.