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Last year, Ninth Circuit U.S. Court of Appeals Senior Judge Betty Fletcher didn’t believe a California death row prisoner deserved another chance to escape lethal injection. Now she does. Fletcher was part of a three-judge panel that denied convicted murderer Larry Davis’ habeas corpus petition in June 2003. She, along with Judge Andrew Kleinfeld, signed a 40-page opinion written by Judge M. Margaret McKeown that denied Davis an evidentiary review. The judges ruled against all of Davis’ claims, including ineffective assistance of counsel. But in an order issued Tuesday, Fletcher says she was wrong to go along with the other judges. She changed her mind after a “painstaking” review of the penalty phase of Davis’ trial. “After close attention to the issues raised in the petition for panel rehearing and petition for en banc review, and a re-review of the relevant record, I confess error,” Fletcher wrote. “I must and do here dissent from the majority opinion. The death penalty was wrongly imposed.” But the judge’s reversal, issued as a dissent from the denial of en banc review, probably comes too late to make a difference in Davis’ case, said his attorney, Tracy Dressner of La Crescenta. “I’m glad Judge Fletcher saw the error of her ways,” Dressner said. “It’s unfortunate she didn’t do that the first go-round.” Although the Ninth Circuit has a history of overturning California death penalty convictions and has received a lot of criticism over the years, it’s almost unheard of for a judge to reverse herself, even in a death case. Last year’s opinion will now be amended to be a 2-1 decision instead of unanimous. The court also stayed the mandate to give Davis a second shot at en banc review. In the 22-page dissent, Fletcher listed several reasons why she believes Davis at least deserves a hearing. She now says Davis meets the “relatively low threshold that mandates an evidentiary hearing” because of questions regarding his competency during the sentencing phase of trial. And she criticizes his trial attorney, especially for his closing arguments, which she characterized as “rude and hostile.” Dressner said it’s “unbelievable” that Davis hasn’t at least been granted an evidentiary review. As for what was different about the request for en banc review compared to the earlier appeal, Dressner said she can only surmise that the later request was more focused. Davis was convicted of first-degree murder, rape, kidnapping and other charges stemming from assaults on Ventura County women in 1988. The sole murder victim, Dawn Holman, was strangled after she had already suffered extensive injuries in a car accident, according to court documents. The case is Davis v. Woodford, 04 C.D.O.S. 8599.

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