This morning, the Ninth Circuit moved yet another en banc AEDPA opinion that tops 100 pages. This time eight judges, including conservatives Milan Smith Jr. and Jay Bybee, voted to toss the death sentence against Scott Pinholster. Chief Judge Alex Kozinski leads the three dissenters.
Smith tweaks Kozinski pretty good (“Despite our dissenting colleague’s well-known flair for ‘creative’ writing, it is not appropriate for a federal appellate court to conjure up evidence that does not exist”). And true to form, as creative writing goes Kozinski’s last graf (.pdf) is a sparkler.
“Meanwhile, prison has been good to Pinholster. He sits in his cell reading Machiavelli, Voltaire ‘and all the philosophers,’ drawing pictures to sell over the Internet,” Kozinski wrote. “He enjoys the gravitas, authority and mentoring opportunities that come with being an elder in his prison gang, and has surgery performed on his knees at taxpayer expense. He still stabs people whenever he can, without passion or regret; ‘it was just business,’ he explains. His conscience doesn’t trouble him about the fact that he took the lives of two fellow human beings; he has never expressed the least remorse for his killings. The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out.”
— Dan Levine
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