Wednesday, October 03, 2012

Detrich v. Ryan (9th Cir. - Oct. 3, 2012)

David Detrich (allegedly) killed someone, and Arizona sentenced him to death.  The Arizona courts affirmed, both on direct appeal and on state habeas, and his habeas petition didn't fare any better in federal district court in Arizona either.

But, in 2010, the Ninth Circuit reversed, and granted habeas relief.  Unanimously.  In an opinion written by Judge Paez and joined by Judges Pregerson and McKeown.

But just because you win in the Ninth Circuit doesn't mean you win.  Especially in a death penalty case.  But Supreme Court doesn't reverse the case, but they do GVR it.  So in 2011, they send it back to the same panel on the Ninth.

So the Ninth Circuit takes another look at it in light of the GVR.  Judge Paez again writes another opinion, and again grants habeas relief.  And Judge Pregerson again joins.  But they now lose Judge McKeown.  Who, in light of the Supreme Court's GVR and/or intervening decision, reconsiders her prior views and/or sees the handwriting on the wall.  So she now dissents.

So same result.

Only this time, it's not likely to even make it out of the Ninth.  Today the court takes the case en banc

So Detrich had a celebration in 2010, but as they say, it's not over until the fat lady -- in this case, the Supreme Court and the en banc Ninth Circuit -- sings.  Moreover, as is often the case in death penalty appeals, the panel's words are typically far from the final song.

But the big thing Detrich's got going for him is time.  The murder was all the way back in 1989.  Over two decades ago.

But that's water under the bridge.  My strong sense is that this one's taking another two to three years.  Tops.