Published opinions get rare around Christmas time for both the Ninth Circuit and the California appellate courts. But today we get something from the Ninth Circuit. It's an opinion by now-Chief Judge Thomas, joined by Judge Reinhardt, with a dissent by former-Chief Judge Kozinski. In a death penalty case, no less.
Can't ask for a much smarter, or more distinguished, panel. Not surprised to see the lineup, either.
Chief Judge Thomas says that Eric Mann received ineffective assistance of counsel at the sentencing phase (albeit not at the conviction stage) because his attorney failed to investigate -- or present at trial --some pretty huge mitigating facts. Judge Kozinski, by contrast, says that the Ninth Circuit's at it again, and that the Supreme Court will summarily reverse or Mann will just get his death sentence reimposed on remand.
The latter's certainly a possibility. So's the former.
As for who has the better normative argument, well, I'll leave that to the authors. I can't add much more than what's in their respective opinions.
I will say one thing, however. When you decide to rip off a kilo of coke from a drug dealer by giving him a shoebox full of paper instead of money, I suggest three things. First, be a good shot. Mr. Mann had that one covered. His first shot went straight through the heart of the first guy, and his second shot severed the aorta of the second guy. Second, have a plan to dispose of the bodies. Mr. Mann did not initially satisfy this requirement, but he thought up a good one pretty quickly. He cleaned his house, recovered the bullets, patched the holes, dumped the bodies, and hammered down the guns and ditched them in a lake.
Finally, if you've got a confederate for all of the above, don't piss her off.
That last thing is what tripped up Mr. Mann.
The police searched the house right after the murders, and found the patches, but couldn't definitively pin the murders on him. So the double homicide when cold. For four years.
But Mann's girlfriend, who knew about (and saw) the whole thing, eventually got tired of Mann's abuse and took their daughter and moved from Arizona to live with her father in Washington. And, shortly thereafter, told the police about the crime.
Hence Mann's conviction and presently-vacated death penalty.
The lesson for 2014 is to not commit double murders. Or, if you do, to be nice to the witnesses thereof for the rest of your life.