Today the U.S. Court of Appeals for the Sixth Circuit denied the petition for panel rehearing and rehearing en banc in Slagle v. Bagley. As I posted here, the original three-judge panel split over whether Billy Slagle's capital conviction for the aggravated murder of Mari Anne Pope (whom he stabbed seventeen times with sewing scissors) should be overturned due to alleged prosecutorial misconduct in the form of improper statements by the prosecuting attorney. Judge John Rogers and Cheif Judge Danny Boggs concluded that the statements were insufficient to render the trial and resulting conviction unfair. Judge Karen Moore dissented.

Today, Judge Moore reiterated her dissent from the original panel's decision, and Judge Boyce Martin dissented from the decision to deny the petition for en banc review. Accoring to Judge Martin:

Any student or practitioner of the law — indeed, any casual viewer of Law & Order — would find it obvious that the repeated, unduly prejudicial comments of the prosecutor in this case were highly improper. And yet an attorney not only admitted to practice in Ohio, and not only employed by the state prosecutor's office, but charged with the duty to prosecute a criminal trial with the highest possible stakes, found it appropriate to repeatedly make such comments. Further, the state trial judge, who is entrusted with profound Constitutional responsibilities, presided over a trial where these comments were made over and over again. The debasement of the ethical code of our profession and the rules of evidence and procedure that occurred at Slagle's trial are emblematic of how the politicization of the death penalty has undermined the administration of criminal law in this country.

Chief Judge Boggs also wrote a decision concurring in the denial of rehearing en banc, which reads:

Because dissents from our court's denial of rehearings en banc are quite rare, the lack of any countering views at the time of such a dissent may be taken to mean that the contrary views presented are unanswerable.

Instead, it is usually the case that the original opinion has carefully considered and answered any substantive points made in the dissent from denial of rehearing en banc.

So it is in this case. Judge Rogers's excellent opinion carefully applied existing law with respect to analyzing statements, made during the course of a long and contentious trial, that may be characterized as improper statements by a prosecutor. The law never has been, in a capital case or otherwise, that every or even multiple prosecutorial errors, objected to or not, cured or not, can bring a grant of habeas corpus in federal court, years or decades down the road. Instead, the law prescribes a method for analyzing the import, motive, frequency, and prejudice from any such remarks, which is exactly what Judge Rogers's opinion did, and that opinion fully answers the substantive portion of the dissents.

And that's not all, for the Sixth Circuit issued an opinion in another habeas case today in which the court panel was once again divided. In Carroll v. Renico, the court, in an opinion by Judge Rogers joined by Judge Jeffrey Sutton, rejected Jarmaine Carroll's petition for a writ of habeas corpus alleging improper jury contact and a violation of his Sixth Amendment right to counsel by allowing co-defendant's counsel to "stand in" for Carroll's attorney during reinstruction of the jury. Judge Eric Clay agreed with the majority on the first claim, but dissented on the Sixth Amendment claim.

I should also note that the Sixth Circuit issued another interesting divided opinion in a non-habeas case arising out of a man's arrest for yelling "God Damn" at a town meeting. In this case, Chief Judge Boggs wrote for the majority, while Judge Sutton wrote a dissent. Howard Bashman has more on this decision here.