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Belmontes v. Ayers (9th Cir. - Dec. 30, 2008)

By Shaun Martin

You should read this one if only to read the concurrence of Judge Reinhardt (joined by Judge Paez) from the denial of the petition for rehearing en banc. Basically, Judge Callahan dissents from the denial in this death penalty case, and begins her dissent by noting that the underlying opinion was the third time the panel in the case had reversed the death sentence. Judges Reinhardt and Paez -- who were the majority of the panel -- do not like the implication. And respond in a classic (and exceptionally well-written) Judge Reinhardt fashion.

You gotta read the whole thing to get the appropriate warm and fuzzy feeling. I'll only emphasize that Judge Callahan might have picked a better vehicle for the attack, since Judge Reinhardt cogently points out that the last two times the panel reversed the death sentence, admittedly, the Supreme Court reversed. But the first time was simply a GVR (which expressly reflects no view on the merits), and the second was on a 5-4 vote. Hardly an example of an out-of-control, viciously anti-death penalty Ninth Circuit panel that needs to be stopped at all costs.

I wanted to add one more thing, which I thought was interesting. It's a death penalty case, so you might facially expect the votes to line up along the usual lines. Of course, the actual vote isn't public, only who signed onto the dissent from the denial. But what's striking about who joined the dissent -- at least to me, and this is something I haven't ever noticed before -- was that, sure, you have your usual conservative vs. liberal (and related, but no coterminous, pro-versus-anti-death penalty) lineup to a degree, but even more than that, there's a geographic split that's fairly striking.

Every single one of the eight dissenters is located north of the 36th parallel, and none of the 14 active judges who are south of the 36th joined the dissent. Every single active judge from Alaska (Kleinfeld), Washington (two Democratic appointees, Gould and Tallman), Oregon (O'Scannlain), and Idaho (N.R. Smith) joined the dissent. Add to that the judge from barely-north-of-the-36th Sacramento (Callahan), and a judge from also barely-north-of-the-36th Las Vegas (Bybee) and San Francisco (Bea) and you have your eight dissenters. By contrast, not a single judge from Southern California, Arizona, or Hawaii joined the dissent.

Think about that the next time people talk about splitting the circuit.

Full post as published by California Appellate Report on December 31, 2008 (boomark / email).