Bench Memos

Law & the Courts

A Strange New Crime?

Writing for a Ninth Circuit panel majority in Kayer v. Ryan, Judge William Fletcher begins his opinion with this curious sentence: “George Russell Kayer was convicted of little evidence to support the argument.”

Fortunately for Judge Fletcher and many of his Ninth Circuit colleagues, there appears not to be a crime of providing “little evidence to support the argument.” Fletcher and Judge Michelle T. Friedland and their law clerks instead appear to have done some very poor proofreading. [Update (5/14, 7 a.m.): I have learned that the Ninth Circuit clerk’s office has taken responsibility for the glitches, so I am striking through the preceding sentence and a passage below.]   Indeed, just two paragraphs later comes this mess (emphasis added):

Second, in the alternative, the Court held that even if there first degree murder [sic] and sentenced to death in Arizona Superior Court in 1997. During a brief penalty-phase hearing, Kayer’s counsel argued as a mitigating circumstance that Kayer suffered from mental illness and was a substance abuser, but provided very had been non-speculative evidence [sic] of the existence of such impairment, Kayer had failed to establish a “causal nexus” between the alleged impairment and the murder.

[Update (7:10 p.m.): The glitches appear to have been fixed.]

Untrustworthy in small things, untrustworthy in large. It seems likely that Fletcher also botched the ruling, as Judge John B. Owens (an Obama appointee but much sounder than Fletcher or Friedland) explains in his brief dissent that the majority’s reversal of Kayer’s death sentence flouts the highly deferential standard of AEDPA and ignores that the critical facts “are remarkably similar” to a previous case (Woodford v. Visciotti) in which the Supreme Court summarily reversed the Ninth Circuit.

Mark this one for another summary reversal.

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