Rashkind Blog

Statistical Disparity Infers Intentional Bias?

2008-08-20T13:20:00.003-04:00

The Supreme Court has long recognized that extreme statistical disparity infers intentional institutional bias. For those who doubt this precept, re-read Casteneda v. Partida or Hazelwood School District v. United States. With that in mind, I wondered about the Eleventh Circuit's record for granting rehearing en banc: In what percentage of cases has the Eleventh granted rehearing en banc following a panel decision adverse to the government? And what percentage follows a panel decision denying relief to a criminal defendant, prisoner, accused or detainee? Are panel errors evenly distributed, or is there a bias in correcting only panel decisions adverse to the government?

A semi-exhaustive (if not exhausting) review of all en bancs granted since the circuit was formed in 1981 reveals disturbing, if not unexpected, results:

There have been 70 en bancs granted in cases involving criminal defendants, prisoners, detainees and the like.

Of those:

65 en bancs were granted after a panel decision adverse to the government or state
3 en bancs were granted to defendants
2 don't count (see below). In one, Toles v. Jones, the en banc order followed a government-favorable panel decision, but the en banc order was later rescinded. In the other, US v. Morrill, the en banc hearing followed a remand from the Supreme Court.

Throwing out Toles and Morrill, that leaves 68 en banc grants:

95.6+% granted after a decision adverse to the government
04.4+% granted following decisions adverse to criminal defendants

Hmmm . . . that means nearly all seriously erroneous panel opinions favor criminal defendants . . . Or, perhaps we can fairly infer a long-term institutional bias in favor of the sovereign.

Maybe I've missed some cases. Let me know if there are any for which I did not account -- here's the ones I counted: Childers v. Floyd, Hill v. Schofield, US v. Gilbert, Coffin v. Brandau, US v. Irey, US v. Dodge, US v. Svete, Powell v. Barrett, Jones v. Walker, US v. Lewis (en banc court granted defendant's motion for en banc, then simply re-affirmed the conviction), US v. Garey, US v. Campa, Gonzalez v. Crosby, US v. Yates, US v. Drury, US v. Sigma International, US v. $242,484, Adefemi v. Ashcroft, Johnson v. Governor of Fla., US v. Ballinger, Evans v. City of Zebulon, US v. Frazier, Grech v. Clayton County, GA, US v. Sanchez, Marsh v. Butler County, AL, Chandler v. US, US v. Cerceda, US v. Kaplan, Craig v. Singletary, US v. Rodriguez de Varon, Freund v. Butterworth, Onishea v. Hopper, US v. Steele, US v. Smith, US v. Gecas, US v. Oboh, US v. Shields, Glock v. Singletary, Sultenfuss v. Snow, Waters v. Zant, US v. Alpert, Harris v. Evans, McBride v. Sharpe, Tittle v. Jefferson County Com’n, US v. McRee, US v. Morrill (en banc ordered due to remand order from Supreme Court), US v. Herring, US v. Roman, US v. Gayle, US v. Falcone, US v. Elgersma, US v. Teague, Nichols v. Butler, US v. Miller, Johnson v. Dugger, Toles v. Jones (original ruling against state, but en banc order later rescinded), US v. Tobin, US v. Four Parcels of Property in Greene and Tuscaloosa Counties in State of Ala., Peoples v. Bowen, Hargrave v. Dugger (1987 - following decision adverse to defendant), Dix v. Kemp, Crutchfield v. Wainwright, US v. Cruz-Valdez, Peek v. Kemp, US v. Bacca-Beltran, Brooks v. Francis, Davis v. Zant, Drake v. Francis, Tucker v. Zant, Moore v. Kemp (1987 - following decision adverse to defendant). Unless otherwise indicated, each en banc order followed a decision adverse to the crown.

Original post on June 16, 2005; updated December 23, 2007, March 18, 2008, July 1, 2008, August 20, 2008, August 4, 2009, August 12, 2009, and again on November 11, 2010.

Supreme Court Rejects Eleventh Circuit's Ban on Rule 60(b) in Habeas Cases

2005-06-23T13:02:00.000-04:00

The Supreme Court decided Gonzalez v. Crosby today, ruling that Fed. R. Civ. P. 60(b) remains available to reopen and correct errors in habeas corpus cases. Justice Antonin Scalia delivered the opinion of the Court, upholding use of the rule to reopen habeas corpus cases decided by legal error, mistake, or where there has been an intervening change in law. He was joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, Thomas, Ginsburg and Breyer. Justice Breyer also filed a separate concurring opinion. Justices Stevens and Souter dissented -- they also uphold the continuing viability of Rule 60(b), but would have gone further, granting full relief to the petitioner, Aurelio Gonzalez. All nine justices rejected the Eleventh Circuit's en banc ruling that Fed. R. Civ. P. 60(b) was effectively repealed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996.

Yates En Banc'd

2005-06-03T14:50:00.000-04:00

As I suggested when it was decided, the judges of the Eleventh Circuit voted to vacate the Yates decision and have it heard by the full court. This follows an uncomfortable tradition in the circuit for some judges to single out defense-favorable decisions by certain other judges for reconsideration by different judges -- under the cover of en banc review. The Clerk's letter setting forth the questions for en banc review can be viewed here. None of the questions posed identify the customary basis for en banc review -- conflict with a prior panel decision of the court or with a decision of the the Supreme Court. Oral argument is scheduled for October 6, 2005.

Residual evidence of change

2004-11-25T13:16:00.000-05:00

Two years ago, I wrote in the ABA's Criminal Justice magazine about a clash between Justices Scalia and Breyer over a proposed rule change that would have broadened the use of televised testimony in criminal trials. Scalia thought such an expansion of admissible hearsay violated the Confrontation Clause, but Breyer disagreed and thought it premature to decide the constitutionality of a rule before it is adopted. The Court rejected the proposed change to Rule 26(b), as I explained here. Then came last Term's Supreme Court decision in Crawford v. Washington, overturning Ohio v. Roberts' overly inclusive view of the admissibility of hearsay. (In retrospect, the rejection of Rule 26(b) forecast Crawford). Now, the Eleventh Circuit also celebrates the rebirth of the Confrontation Clause, in U.S. v. Yates (Edmondson, Cox, Paul, JJ.), reversing fraud, money laundering and drug convictions supported by two-way video teleconference testimony of witnesses in Australia, whose oath was administered by video by the Alabama district court clerk. Relying on both Crawford and the Supreme Court's rejection of proposed Rule 26(b), circuit judge Cox and district judge Paul reversed and remanded for a new trial. Chief Judge Edmondson went in a different direction to reach the same result: he contends that a valid oath was never administered in this long-distance teleconference and none could be, since witnesses in a foreign country are not bound by a U.S. oath administered from here to there. Absent the sanctity of a valid oath, he finds, the testimony is not admissible.

Following the Supreme Court's lead seems to be a new tack for the Eleventh Circuit, perhaps inspired by the fact that over the past two Terms 100% of cert grants from the Eleventh have been reversed by the Supreme Court. Or is this panel decision due to be "en banc'd" by the cadre of circuit judges who often go out kicking and screaming rather than allow a conviction to be overturned.