Judicial writing and the ethics of the judicial office

Georgetown Journal of Legal Ethics, The, Winter 2001 by McGowan, David

the Ninth Circuit issued an order recalling the mandate and providing for rehearing en banc. The Ninth Circuit set a hearing for August 1 on whether the panel decision "would result in a fundamental miscarriage of justice."86 On July 31, Governor Wilson denied clemency. The Ninth Circuit heard argument en banc on August 1, and on August 3 issued its order recalling its mandate and reversing the panel decision.87 Thompson's execution was called off forty-eight hours before he was to have been killed.

California, of course, appealed to the Supreme Court. The Court's opinion accepted Judge Fletcher's careful explanation that the Ninth Circuit had denied Thompson's motion for relief from judgment and instead, relying on the judges' own procedural mistakes and not considering new points of fact or law, had granted Thompson's original habeas petition.88 Justice Kennedy's majority opinion referred several times to Judge Kozinski's account of the Ninth Circuit's internal conflicts.89

Thompson lost anyway. The Court held that the decision to recall the mandate was a matter of discretion. Because the Ninth Circuit had exercised its discretion on a habeas petition in a capital case, the Court reviewed the decision to determine whether the recall was necessary to prevent "a miscarriage of justice as defined by our habeas corpus jurisprudence."90 Five justices favored this standard, which is concerned "with actual as compared to legal innocence."91 These justices felt this standard ensured that appellate courts would exercise their discretion in a manner consistent with the goals of the Antiterrorism and Effective Death Penalty Act.92 Thompson lost because the majority concluded he had not met this standard. Four justices disagreed with the standard and would have asked whether the en banc panel abused its discretion in recalling the mandate; concluding that it did not, these justices would have affirmed.93

held that the motion was in substance a successive habeas petition and that it did not meet the AEDPA's standards for permitting such petitions to be heard. The court therefore held that Thompson could not bring the motion as a new petition.94 Thompson was executed at San Quentin on July 14, 1998.(95)

The writing in Thompson's case was unusual. I read the case for the first time while in practice and my first response was a practitioner's: How does a lawyer tell a client facing death that any chance, no matter how remote, "fell between the cracks?" The explanation that the law clerks bungled the calendar would have been frustrating for Thompson's lawyers - their work on the rehearing petition had been wasted and their client's position worsened for reasons they could not argue with or, but for Judge Kozinski's opinion, even have known about. Thompson would not have thought much of the explanation either. The law clerk mistakes would have been easier for Thompson's side to take because they did not find out about it until Judge Kozinski published the excerpts from the internal memoranda, and he was dissenting from a decision in Thompson's favor. Still, a practitioner could not help but wonder: How often does this sort of thing happen? How likely is it to happen again? Could it happen again in my case?