As you have probably heard, the 11th Circuit denied an en banc rehearing. You can read the order here.
I think Judge Tjoflat’s dissent is quite good, in particular where he notes that the appellate court could not possibly have conducted the necessary thorough review in the limited time available. Indeed, the 11th Circuit essentially admits that it didn’t even try, dragging out the old principle that “It is not the role of an appellate court to second-guess credibility determinations.” (It was arguably the role of the District Court in this case to do so, but that point isn’t really addressed.)
If courts were to behave this way in a death penalty appeal, there would be howls of outrage from the left from coast to coast — and rightly so. But as soon as the appellant raises claims that the left doesn’t like, many leftists are perfectly happy to have a court shrug off the analysis with the typical disdain appellate courts have for detailed factual analysis.
UPDATE: By the way, I feel the same way about the appellate courts’ ability to correct injustices in death penalty cases:
Innocents who have been released from Death Row have almost never gained their freedom through the orderly workings of the system. In many cases, the defendant’s innocence has been established due to the efforts of activists who have no official role in the criminal justice system. The fact that innocents have left Death Row is no tribute to the criminal justice system.
The simple fact is that the appellate process is not a great place for correcting incorrect factual findings by the trial court.