Thursday, March 15, 2007

Comer v. Schriro (9th Cir. - March 15, 2007)

Rarely does the en banc court decide a case without oral argument. But the Ninth Circuit does so here.

The en banc court writes a fairly brief (especially for a death penalty case) per curiam opinion that reverses the panel opinion and affirms the district court's holding that Robert Comer was competent to become what we call a volunteer; e.g., someone who wants to die. The opinion is a 14-1. With only Judge Pregerson (who joined the prior panel opinion) dissenting.

It's also rare that an opinion includes an actual photograph. But check out the last page of the dissent. Which ends with a photograph of the naked defendant, wrapped in a towel and shackled to a wheelchair, which is how he was dragged out of his cell so he could be sentenced to death. The picture appears immediately after the final paragraph of Judge Pregerson's dissent, which says: "Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson’s opinion only requires that the sentence of death be pronounced to an understanding human, not to a discarded piece of flesh."

Powerful stuff. But not powerful to get anyone else to vote Judge Pregerson's way.