Judge Merritt & the Case of Marvallous Keene:

In July 2006 I blogged about an odd case in which Senior Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit issued a last-minute stay of execution for convicted murderer Sedley Alley, despite not being on the panel that had heard Alley's latest appeal. The stay was quickly vacated with an order that chastised Judge Merritt for his apparently unusual action.

The post prompted a vigorous debate in the comments over the propriety of Judge Merritt's actions, and the broader divisions over death sentences within the Sixth Circuit. One commenter charged that Merritt was a staunch opponent of death penalty, and challenged readers to identify "a single case since [the late 1970s] in which Merritt voted to uphold a death sentence." Here's one from last Friday: Keene v. Mitchell.

In Keene, a unanimous three judge panel consisting of Judges Merritt, Sutton and Siler rejected Marvallous Keene's habeas petition. Keene had waived his right to a jury trial, and was convicted on eight counts of aggravated murder (among other things) by a three-judge panel in an Ohio court, resulting in five(!) death sentences. In federal habeas proceedings, Keene challenged his convictions on Due Process and Equal Protection grounds. The district court rejected Keene's claims, and Judge Merritt joined Judge Siler's brief opinion affirming the district court.

NOTE: Link is now fixed. I had inadvertently linked to another Sixth Circuit habeas decision -- a divided opinion from yesterday in Johnson v. Bell -- that I also hope to blog about, time permitting.

Ignorance is Bliss:
...resulting in five(!) death sentences.

With how soft our justice system is on criminals I bet only one of them gets carried out.
4.30.2008 1:25pm
Patrick Wright (mail):
With how inefficient our government can be I wouldn't take that bet.
4.30.2008 1:37pm
Dave N (mail):
One commenter charged that Merritt was a staunch opponent of death penalty, and challenged readers to identify "a single case since [the late 1970s] in which Merritt voted to uphold a death sentence."
I know little of the Sixth Circuit but it could be that the claims were so thin that even Judge Merritt couldn't figure a way to grant relief.

Of course, on several occassions I have made a similar argument regarding Judge Stephen Reinhardt of the 9th Circuit. And I am still waiting.
4.30.2008 1:43pm
Cold Warrior:
My solution (and believe me, I've dealt with the problem of senior status judges interjecting themselves where they don't belong on more than one occasion): no senior status. Retirement means you go home, or go fishing. Not fishing for TRO and stay requests that happen to come in when you are sitting around in your chambers. Fishing, as in on a boat in a faraway lake.
4.30.2008 2:12pm
Prof. Adler, you have linked to the Johnson v. Bell case. Here's the proper link for Keene v. Mitchell:
4.30.2008 2:27pm
I think you've linked to the wrong case.
4.30.2008 2:32pm
emsl (mail):
I think the link is pointing to the wrong decision.
4.30.2008 2:52pm
Dave, as has been pointed out to you on numerous occasions -- and I know this to be true because I have said this to you -- most cases (and many, many death penalty cases) are issued in non-published opinions. Thus, you can infer little from what a judge has done in his or her published opinions. Your challenge implies that Judge Reinhardt has never voted to uphold a death sentence based on incomplete data.
4.30.2008 3:47pm
Dave N (mail):

The Ninth Circuit actually publishes its "non-published" opinions here and I read any and all that look like they are habeas related (you start to recognize the names of the wardens).

I also have Westlaw access and have tried using that as well. I have even corresponded with people in the Ninth Circuit Clerk's office (a few visit the VC). Finally, few merits (if any) death penalty cases are unpublished (I have seen more than 1 disposition on exhaustion or other procedural grounds).

And my offer is universal. Point to a decision, published or not, where Reinhardt has voted to uphold a death sentence.
4.30.2008 4:24pm
Dave, every circuit literally "publishes" its non-published opinions (at least now a days). Nobody has read every single 9th Circuit dp opinion since the 1970s (which is when Reinhardt was put on the court). Indeed, it would have been nearly impossible to do so before the advent of the internet. And as you know, since 1996, most death penalty cases (like most habeas cases) are not decided on the merits, but on a procedural grounds.

My quibble isn't with your offer. It's with your implicit point that because nobody has pointed you to such a case, it doesn't exist.
4.30.2008 4:31pm
Dave N (mail):

All I have asked is for someone to point to one. There are a lot of people who read and write this blog, including experts in capital litigation on both sides. All I have ever asked for is someone to say "Dave, you are wrong. In 1979, Reinhardt sat in the panel for Smith v. Jones, 79-12345, and it upheld a death sentence."

If I get that citation, I will contact the clerk myself and get a copy of the opinion. And I will publicly eat crow on the VC.

My offer used to be broader and ask for a citation to any habeas case where Reinhardt joined the majority in upholding a conviction. A Ninth Circuit clerk who reads the VC pointed me to one and I acknowledged that challenge had been met.

And why should I assume such a case exists when there is no evidence to support the claim?
4.30.2008 4:42pm