Three new Obama appointees to the U.S. Court of Appeals for the Ninth Circuit weighed in Tuesday on their first hotly contested death penalty case.
Judges Paul Watford, Morgan Christen and Jacqueline Nguyen voted on the side of staying an execution — but distanced themselves from a blast leveled by seven of the court’s most liberal judges at two of their own colleagues.
In Stokley v. Ryan, 09-99004, the court narrowly turned aside a call to rehear en banc a decision clearing the way for the Dec. 5 execution of Arizona inmate Richard Dale Stokley, who kidnapped, raped and strangled two 13-year-old girls.
He had lost his bid for habeas corpus last year, but asked the Ninth Circuit to recall the mandate and send his case back to U.S. district court based on a ruling from the U.S. Supreme Court in January on attorney abandonment.
A three-judge panel rejected Stokley’s motion Nov. 15 in an order signed by Judges M. Margaret McKeown and Carlos Bea. They ruled that although Stokley had had serious difficulties with his state post-conviction attorney, she had not “abandoned” him within the meaning of Maples v. Thomas, nor could he show prejudice even if he’d been abandoned. Judge Richard Paez dissented.
Six days later the panel backtracked somewhat, filing a new order saying it would assume without deciding that Stokley had indeed been abandoned, but that he still could not show prejudice.
Last week the full court fell a few votes short of rehearing the case en banc, and on Monday Judge Stephen Reinhardt filed a dissenting opinion blasting both the panel’s reasoning and tactics.
“The majority, without proper briefing, made a number of serious errors that warrant review by the en banc court,” Reinhardt wrote. “So great was its perceived need for speed that the panel was still amending its order and changing its rationale while the en banc process was under way.”
Reinhardt argued that Stokley was entitled to an evidentiary hearing on the prejudice issue, and criticized McKeown and Bea for saying in their original Nov. 15 order that Stokley’s attorney, Jennifer Garcia, could not at oral argument identify any issues that required factual development. According to a recording of the hearing, Judge Bea had qualified the question by saying, “putting aside prejudice and putting aside the merits of the claim — just as to cause,” and Garcia had agreed “it would only be the prejudice and the merits of the underlying claim” that required an evidentiary hearing.
Reinhardt was joined by Paez and Judges Harry Pregerson, Kim McLane Wardlaw, William Fletcher, Raymond Fisher and Marsha Berzon. Fletcher issued a separate opinion, joined by those same judges, saying Stokley’s claims “may or may not prove to be winning claims,” but “we should not allow the state of Arizona to kill Stokley before they have been properly considered.”
Watford, who just joined the court from Munger, Tolles & Olson in May, wrote a third opinion. Only one paragraph long, it noted simply that the questions surrounding prejudice remain unresolved. “These important and unsettled issues should be resolved by the court sitting en banc,” he wrote. Obama appointees Nguyen, who was confirmed in May, and Christen, confirmed in December, concurred in Watford’s opinion. So did Pregerson, Wardlaw, Paez, Fletcher, Fisher and Berzon — but not Reinhardt.
Obama’s two other appointees, Mary Murguia and Andrew Hurwitz, did not sign any of the concurrences.
Generally, 15 of the 28 active Ninth Circuit judges must vote to take a case en banc. Although 10 judges publicly dissented from the Stokley en banc vote, it’s possible other judges voted the same way, as a few members of the court prefer not to issue public dissents from denial of en banc review.
Jonathan Bass argued the case for the Arizona attorney general.
Scott Graham is a reporter for The Recorder, a Legal affiliate based in San Francisco.