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Brown v. Uttecht (9th Cir. - June 27, 2008)

By Shaun Martin

The California Court of Appeal is having a server problem today, so no opinions from them. But the Ninth Circuit keeps cranking them out.

Including this one.

It's a death penalty case post-remand from the Supreme Court. A case in which the panel originally granted habeas relief -- though beginning the opinion with the memorable sentence "Cal Brown is not a nice man." -- but the Supreme Court (shockingly) viewed the merits differently. On a 6-3. (Stevens, Souter, and Breyer on the bottom)

So now the case is back down, for resolution of the remaining issues. Same panel on the Ninth Circuit, though. Kozinski, Reinhardt and Berzon. All three of whom were up for granting habeas relief in the original opinion.

Post-remand, however, it's -- predictably -- a different story. Two of the three judges say "Thanks, I'm done being reversed, thank you very much. Death penalty affirmed." One, however, says "I think not. I'll still vote to reverse the death sentence." Knowing full well, I believe, that he'd totally be smacked down by the Court if the case went up again. Which, of course, it would have had habeas relief again been granted by the panel. (At least if the case didn't get reversed en banc first!)

So who's the dissenter? Duh. I said "he" in the last paragraph, so that's one (totally unnecessary) hint. Here's another one: It's not Chief Judge Kozinski.

Like the remaining guy cares if he's reversed in a death penalty case. Add it to the list.

Full post as published by California Appellate Report on June 27, 2008 (boomark / email).