548
Opinion of the Court
Governor agreed with the view of the judge who presided over Thompson's trial, that "it would be an absolute tragedy and a travesty of justice to even seriously consider clemency in this case." Ibid. (internal quotation marks omitted). Clemency was denied.
Two days before Thompson was to be executed, a divided en banc panel of the Court of Appeals recalled the court's mandate of June 11, 1997. This action came 53 days after the mandate had issued and almost a full year after Thompson had filed his suggestion for rehearing en banc. The Court of Appeals asserted it did not recall the mandate on the basis of Thompson's later motion for recall, but did so sua sponte, on the basis of the claims and evidence presented in Thompson's first federal habeas petition. Thus, the court said, its "recall of the mandate is not predicated on any new evidence or claims Thompson raises in his motion to recall the mandate." 120 F. 3d 1045, 1049, n. 3. The court stated it had considered whether to recall the mandate sooner, but had chosen to wait until the conclusion of Thompson's state-court proceedings before taking action.
The court presented two bases for recalling its earlier mandate. First, the court asserted that, absent certain "procedural misunderstandings within [the] court," it would have called for en banc review of the underlying decision before issuing the mandate denying relief. Id., at 1047. These procedural misunderstandings included a mishandled law clerk transition in one judge's chambers and the failure of another judge to notice that the original panel had issued its opinion in the case. Id., at 1067 (Kozinski, J., dissenting). Second, the en banc court asserted the decision of the original panel "would lead to a miscarriage of justice." Id., at 1048.
Having recalled the mandate in Thompson's case, the en banc court went on to address the merits of his first federal habeas petition. The court held that Thompson's trial counsel had provided ineffective assistance as to the rape charge
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007