Cal Coburn Brown v. John Lambert, Superintendent of Washington State Penitentiary

dissenting from denial of rehearing en banc:

Contrary to the provisions of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C. § 2241 , et seq.), our court overturns a fitting punishment for a just aggravated murder conviction. To do it, our panel impermissibly substitutes its own evaluation of the trial judge’s discretionary ruling to dismiss a prospective juror for cause during jury selection in this capital case, notwithstanding the inherent limitations of a written transcript and the fact that defense counsel stated immediately before the court excused the prospective juror, “We have no objection.” The opinion fails to give appropriate AEDPA deference to the determination of the Washington Supreme Court which approved the trial judge’s reasonable and more informed approach to jury selection in qualifying the venire. I respectfully dissent from the denial of rehearing en banc.

Rice v. Collins, — U.S. -, 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006), reiterates our limited role and authority under AEDPA by recognizing the need for highly deferential review of a trial court’s decisions in jury selection…

ORDER AND AMENDED OPINION

ORDER

The opinion filed December 8, 2005, and reported at 431 F.3d 661 , is withdrawn, and is replaced by the Amended Opinion, 04-35998, filed concurrently herewith. The petition for rehearing is otherwise denied.

*947 A judge requested a vote on whether to rehear this case en banc, but a majority of the non-recused active judges did not vote in favor of en banc consideration. The petition for rehearing en banc is therefore DENIED. See Fed. R.App. P. 35. No further petitions for rehearing or rehearing en banc will be accepted.

OPINION

We consider the exclusion of jurors for cause in a death penalty case.

Facts

Cal Brown is not a nice man. In May 1991, he carjacked Holly Washa and drove her to a motel near the Seattle-Tacoma airport. Brown robbed, raped and tortured Washa while holding her hostage for two days. He bound and gagged her, penetrated her with foreign objects, whipped her and shocked her with an electrical cord. Eventually, Brown put Washa in the trunk of her car, slit her throat, stabbed her and left her to bleed to death in a parking lot.

Brown then flew to Palm Springs, California, to rendezvous with his next victim, Susan Schnell,…

451 F.3d 946 Cal Coburn BROWN, Petitioner-Appellant, v. John LAMBERT, Superintendent of Washington State Penitentiary, Respondent-Appellee. No. 04-35998. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 2005. Filed December 8, 2005. Amended June 19, 2006. Suzanne Elliott and Gilbert H. Levy, Seattle, WA, for the petitioner-appellant. Rob McKenna, Attorney General, and John J. Samson, Assistant Attorney General, Criminal Justice Division, Olympia, WA, for the respondent-appellee. Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-01-00715-JCC. Before STEPHEN REINHARDT, ALEX KOZINSKI and MARSHA S. BERZON, Circuit Judges. ORDER AND AMENDED OPINION KOZINSKI, Circuit Judge. ORDER 1 The opinion filed December 8, 2005, and reported at 431 F.3d 661 , is withdrawn, and is replaced by the Amended Opinion, 04-35998, filed concurrently herewith. The petition for rehearing is otherwise denied. 2 A judge requested a vote on whether to rehear this case en banc, but a majority of the non-recused active judges did not vote in favor of en banc consideration. The petition for…