Brady’s Bastard Children (Updated)

I’m going to have a lot to say about this case, decided just last week by an en banc United States Court of Appeals for the Second Circuit.

As a preliminary matter, before I really get into it, the overview is remarkable enough.  US Courts of Appeal usually hear and decide cases in three judge panels.  But there are many more judges than just three on the court as a whole.

See here.  That’s 24 judges, by my count.

So what happens with this Poventud case is that it gets decided by a three judge panel in April of 2013, but one judge – Jacobs, who was apparently at that time also the Chief Judge of the whole court – dissented.  A 2 to 1 vote, in other words.

Here’s a little reality for those of you not familiar with how things work in the courts.  Overwhelmingly, depending on the type of litigant*, cases on appeal get no serious attention, the three judge panel decision is unanimous, and the appellate courts just affirm what happened in the trial court.  Often and somewhat recently, in a highly questionable practice, this is done in the federal courts of appeal by decisions explicitly saying that they are not to be taken seriously.  I’m not making that up.  The way it’s worded is that the decision is not intended to have any precedential value and should not be cited as authority.

But one perhaps beneficial consequence of this highly questionable practice is that decisions that don’t explicitly call themselves bullshit get noticed a little more, even when they are unanimous.  Then, moving up the scale of what is deemed important in the federal courts of appeals, when you have a three judge panel issue a decision that is not unanimous – in other words, there is a dissent – well, now in precedential and legal terms this decision is going to get quite a bit of attention, relatively speaking.

Moving up further, you get to the extreme situation.  That’s when you get a divided three judge panel, the case gets referred to the whole court for en banc consideration, the whole court takes it up (!) and when it is decided there’s a serious disagreement among the judges on the court as a whole.

This is what you might call the most “important” kind of decision from a federal court of appeals, and I put that in quotes because it may or may not be important in some absolute sense, but it is definitely important in the sense that federal judges all over the country, and their staffs and law clerks and so forth, will be pondering the great question(s) presented by a case that makes it to this level, and they will be looking for cases that present the same question(s) so that they can weigh in with their 2 cents.

And when I say judges all over the country, I am obviously including the judges on the SCOTUS.  Put another way, once you have a bitterly divided en banc panel of a federal court of appeal, there is a high likelihood that the losing party will seek – and get – review in the SCOTUS.

Because bitterly divided federal courts of appeal are unseemly, or something.

Bottom line, this Poventud case is very significant in the way I have described.  Does it present some issues that have animated us here over at Lawyers on Strike?

Oh, yes.  More to come.

Update:  Of course, while we ponder this very important case and its transcendant questions, the top story on CNN is Justin Bieber’s arrest in Florida.  Meh.


Regular readers will understand.  When the appellant is a disfavored litigant (e.g., lone individual) this is the case.  When the appellant is a favored litigant (e.g., government, bank), serious attention is always given to their appeals.  Not right.  Just how it is.


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Filed under Media incompetence/bias, wrongful convictions

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