Monday, February 08, 2021

Kipp v. Davis (9th Cir. - Feb. 8, 2021)

You can't get any closer than this.

It's a death penalty case in the Ninth Circuit, so you know (or at least suspect) it's going to be (1) hotly contested, and (2) potentially result in a politically-splint judgment.  Which, indeed, happens here.

It's a fairly unique set of underlying facts, and those facts explain in part why the case went down as it did here.  Martin Kipp is accused of committing two different murders.  He gets tried for and convicted of both of them, and in both cases, he's sentenced to death.  He eventually files habeas petitions regarding both convictions, and those petitions eventually reach the Ninth Circuit.

Back in August, the single panel (1) affirms the denial of one habeas petition, thus leaving his conviction and death sentence intact, but (2) reverses the denial of the other.  So now Kipp is merely sentenced to be executed once rather than twice.

Judge Nguyen -- who was on the panel -- dissented from the opinion that granted the one habeas petition.  And a judge on the Ninth Circuit, predictably, requested a vote to take the case en banc.

Now, in a normal case, the state (here, California) would also file a petition to take the case en banc.  After all, it lost, and wants to execute the person.

But, here, there's already an intact death sentence.  For the other murder.  The state sees no need to have two death sentences.  Plus, the Attorney General doesn't think that the fact-specific nature of the panel's decision meets the en banc standards in any event.  So even though the Ninth Circuit expressly invites the state to file for en banc review, it files a brief that says, nah, the state doesn't think it's right and/or worth it to take the case en banc.

Now, that doesn't stop the court itself from taking the case en banc if it wants.  So the vote goes forward.  Albeit in light of the state's own view that it doesn't feel that en banc review is warranted.

And the vote is close.  Super close.  15-14.  Against taking the case en banc.

The line-up is largely predictable, albeit with a few -- telling -- exceptions.  Every Clinton and Obama appointee votes against en banc review, except Judges Nguyen (obviously) and Owens.  Something to remember, for sure.

That gets you 14 votes against en banc review.  But you need (at least) one of the Bush and/or Trump appointees to get you to 15, a majority.

Every Republican appointee votes for en banc review.  Except Judge Miller.

There's No. 15.

Judge Miller writes his own concurrence to explain his vote.  He says that he thinks that the panel was wrong on the merits -- stating that "Judge Ikuta and Judge Nguyen have persuasively argued" that the panel erred -- but that these errors were fact-specific and didn't meet the en banc standards, especially in light of the facts noted above.  And, interestingly, seven Democratic appointees join this concurrence as well.

There's another separate concurrence that responds to Judge Miller, but the vote's the vote.  In the end, Kipp only gets sentenced to die once.

Today's votes nonetheless give you some insight into both how closely the Ninth Circuit is split between left- and right-leaning judges, as well as how the votes of particular judges may be critical in the future direction of the court.  Overall, it's a razor's edge.  This is not your Ninth Circuit of a decade (or even five years) ago.  Much less the Ninth Circuit of the 1980s and 90s.