En Banc Notice Bolsters Bybee's Snarky Dissent

Remember last October when Ninth Circuit Judge Jay Bybee had a, um, mild disagreement with colleague Stephen Reinhardt? We’re thinking of the dissent from a Reinhardt opinion (.pdf) in which Bybee wrote, “I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ My profound disagreement is not limited to the facts, but runs throughout the majority opinion.”

That came in the case of the metal-and-meth-head murder, a case in which the alleged driver for the alleged murderer was nicknamed Hooter, though no one — not even the judges — seems to have determined whether his first name is Arlen or Marlin.

Bybee got some support from his colleagues today, when the Ninth Circuit announced it would be taking the case en banc.

In his October opinion, Reinhardt wrote that Roger Smith’s guilty plea in the murder of Oregon man Emmett Konzelman wasn’t legitimate because Smith’s alleged accomplice Jacob Edmonds — who admitted to a lesser charge in exchange for cooperating against Smith — recanted his testimony. Indeed, Reinhardt wrote, evidence pointing to Edmonds as the murderer, in combination with his new testimony that he had killed Konzelman during a robbery aimed at getting money to buy tickets to an Anthrax concert, should allow Smith to pursue his claim in federal court before exhausting his state-court claims.

Bybee dissented with verve, decrying the meth-fueled killing and accusing his colleagues of playing “judicial hopscotch.

“It is difficult enough to trace their path,” he continued. “I cannot join them in it.”

The decision (.pdf) to take the case en banc means the earlier opinion — and its dissent — won’t count. But we still can’t resist reprinting our favorite line from Bybee’s screed. “There is some ambiguity in the record as to whether Mr. Bouse’s first name is “Arlen” or “Marlin,” he wrote. “The district and magistrate judges used the former, and the majority and the state court sentencing transcript use the latter. On this question, at least, I join the majority.”

—  Justin Scheck

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