Continuing with trying something new here, recording observations from the questions asked at the January en banc sitting. And, contrary to my protest otherwise yesterday, I am giving in to the temptation to try some predictions hunches on the decisions the arguments might lead to, based on the questions and on the judges’ prior inclinations in opinions.
(Incidentally, my hunch on Roake and Nathan from yesterday is Judges Elrod, Stewart, Richman, Haynes, Graves, Higginson, Douglas, and Ramirez in favor of the challengers to the 10 Commandments laws, plus Judge Dennis on Roake; and Judges Jones, Smith, Ho, Duncan, Engelhardt, Oldham, and Wilson in favor of the states; with Judges Southwick and Willett in the balance. I, of course, could be wrong about many of these, but just my educated hunch).
The first argument this morning was from Holberg v. Guerrero, 21-70010, where the panel (Higginbotham, Higginson, Duncan; Duncan, J., dissenting) had reversed the N.D. Tex.’s denial of habeas relief sought on the basis of a potential Brady violation where the prosecution had failed to disclose that the only witness (a jailhouse snitch, Kirkpatrick) who testified as to elements of the petitioner’s guilt-phase trial of self-defense and as to the petitioner’s sentencing-phase elements of the sadistic nature of the killing and as to whether the killing was in the course of the felony of robbery had been a paid informant in a number of other, unrelated cases. Also at issue was a potential Strickland claim of ineffective assistance of counsel in the petitioner’s trial counsel’s strategic decisions regarding the petitioner’s childhood sexual abuse and drug-saturated home environment.
Judge Oldham began the questioning with a persistent series of questions regarding the lack of precise record-support for the petitioner’s habeas counsel’s representations regarding the state habeas court’s findings. Judge Jones observed that the petitioner’s counsel must not have thought that the Brady violation involving Kirkpatrick was too important, since that argument had been “point 33” in the state habeas petition. Judge Higginson came back to the merits of the Brady argument, asking if the state or the state habeas court had ever disputed that there had been a failure to disclose Kirkpatrick’s status as a paid informant; then he queried whether it is always material to not disclose a paid informant, or just under the facts of this case.
Judge Duncan (as he did in his panel dissent) and Judge Jones then turned to some of the gruesome details of the killing to inquire whether there were any alternative theory for the number and nature of stab wounds (including a broken lamp stabbed down the victim’s throat, which particularly grabbed Judge Duncan’s attention), other than the sadistic nature of the killing, which would make the failure to disclose Kirkpatrick’s paid-informant status material or immaterial to the result. Judge Jones asked whether the 57 stab wounds, by themselves, would be evidence of the sadistic nature of the killing, such that failure to disclose Kirkpatrick’s paid-informant status was not material to the result, invoking “just my layman’s view.” Judge Engelhardt wanted to know if Kirkpatrick had testified while wearing jail clothing, such that it would have been readily apparent to the jurors that she was someone who was testifying in hopes of gaining some benefit.
Judge Ramirez returned to the concern of Judge Higginson as to whether any evidence casting doubt on an informant’s credibility (such as being paid) is material evidence that should be disclosed.
Judge Southwick opened the questioning of the state’s advocate, drilling into a question of whether the prosecutor’s “open file” policy were enough to avoid a Brady violation. Judge Higginson then grilled the state’s advocate as to the materiality of the credibility of Kirkpatrick where she had been the only witness who could testify that the petitioner herself had boasted about the sadistic nature of the killing and that the killing had been part of an intended robbery of the victim. He asked whether it was unreasonable for the state court to find that this wasn’t material or that it prejudiced the jury. He noted that, had it been disclosed the Kirkpatrick was a paid informant, that would have triggered two different cautionary instructions to the jury under Texas law. Chief Judge Elrod then questioned the state advocate’s argument that there had been other evidence to show the robbery/felony element of capital murder. Judges Duncan, Ramirez, and Higginson then traded more questions about materiality.
Chief Judge Elrod then completed the questioning of the state’s advocate with a series of questions to clarify the state’s position on the Strickland claim, which concluded with questions poking holes in the trial presentation that the petitioner had been a perfectly normal child and teenager until she went “boy crazy,” noting the subsequently developed evidence of the repeated sexual abuse of the petitioner as a child, noting that’s not “boy crazy” but is “sexual abuse of a minor.”
On the petitioner’s advocate’s rebuttal, Judge Stewart asked counsel to “grapple with AEDPA” and the AEDPA relitigation bar, asking specifically what was the holding he wanted the Court to make. Judge Oldham then asked what cases provided that it was a Brady violation to not disclose that a witness was a paid informant in other cases. Judge Higginson, in response, asked a series of pointed questions to show that the one Fifth Circuit case Judge Oldham suggested held otherwise was distinguishable on all of the operative facts.
Based on questioning and prior cases, in Holberg it appears that Judges Elrod, Stewart, Graves, Higginson, Douglas, and Ramirez (plus the senior judge who was on the panel, Judge Higginbotham) would rule in favor of the petitioner, with Judges Southwick, Richman, and Haynes leaning that way; and that Judges Jones, Smith, Duncan, Engelhardt, and Oldham would rule in favor of the State, with Judges Ho and Wilson also leaning in that direction. That leaves Judge Willett as one I don’t have a hunch on.
The second case argued this morning was Airlines for America v. Department of Transportation, 24-60231, c/w Spirit Airlines, Inc. v. Department of Transportation, 24-60373, an en banc rehearing of a petition for review of a DOT order setting a rule for exactly how airlines should communicate baggage-handling fees and cancellation policies and fees. The panel (Southwick, Haynes, Douglas) had stayed the rule and remanded to DOT for compliance with the APA.
While this argument began with some back and forth questions from Judges Jones, Southwick, Higginson, Wilson, and Graves as to the statutory and regulatory authority of DOT to move beyond adjudicating particular airline conduct as unfair and deceptive to a rule proactively prescribing the conduct (i.e., exactly how fees are communicated to consumers) that will not be found to be unfair and deceptive, by the end of the argument many of the judges had taken up the inquiry of why–if the DOT were conceding it had violated the APA’s notice-and-comment rulemaking requirements, which it was–everyone was here for an en banc argument. While Judges Jones, Southwick, and Higginson turned back to questions of statutory authority for the rulemaking, Judge Ho concluded the questions by asking, “If we were to vacate on the basis of notice-and-comment, would that preclude a future court from addressing statutory authority?”
In the end, the Court was struggling with a question of mootness caused by the agency’s change in regulatory focus (and litigation strategy) at the change of the administration. Would it still be justiciable in this case, as opposed to in a hypothetical future case, to address statutory/regulatory authority of the agency if it conceded that the rule should be vacated on the APA violation? Based on the questions, my hunch here is that the Court overwhelmingly will vacate on the APA basis, with perhaps a couple concurrences in part, with at most a handful of judges joining, to argue that the Court should have addressed statutory/regulatory authority and with an even split among those partial concurrers as to the answer to that question.
Take the Fifth 