Patterico's Pontifications


Another Legal Defeat for the Schindlers

Filed under: Schiavo — Patterico @ 6:42 pm

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.

6 Responses to “Another Legal Defeat for the Schindlers”

  1. […] the concurrence of Judges Carnes and Hull; and the dissent of Judges Tjoflat and Wilson. (Here is my initial post on that decision.) […]

    Patterico's Pontifications » A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction (0c6a63)

  2. When all is said and done, it is obvious that the judiciary is going to suffer horribly from this case. I am not one to consider a judicial decision to be the last word. The last word is that of the people, the word of the legislative branch.

    Mescalero (e9a2a0)

  3. I’m going to guess you didn’t think much of Judge Birch‘s concurrence.

    A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of “activist judges.” Generally, the definition of an “activist judge” is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people – our Constitution.

    I understand Birch to be a conservative Bush appointee, if that sort of thing matters to you.

    Lance McCord (09e203)

  4. My answer to both questions (what did I think of his concurrence, and does it matter to me that he is supposedly a conservative Bush nominee) is “not much.”

    I haven’t read the cases cited by each side, but with that caveat, I thought Judge Tjoflat blew Judge Birch out of the water on the issue of the law’s constitutionality. It appears to me that Congress has the ability to eliminate prudential abstention doctrines — and that the Supreme Court has explicitly recognized Congress’s power to do so.

    Patterico (756436)

  5. “The last word is that of the people, the word of the legislative branch.”

    As to what the people think, they’re not really in tune with the legislative branch on this one.

    actus (e137d7)

  6. Ripples and cross-currents

    Lead and Gold (6ed3f8)

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