Garner v. Mitchell:
I realize this is usually Jonathan's topic, but I thought I would point out yet another remarkable divided Sixth Circuit capital habeas case, this one handed down yesterday: Garner v. Mitchell. I suspect this decision won't be the last ruling in the case.

  This opinion by Judge Moore, joined by Judge Martin, orders the state to release (or retry) death row inmate William Garner on the ground that he did not properly waive his Miranda rights in 1992 before confessing to setting a fire that killed several children. Garner was read his Miranda rights and signed the form waiving those rights, and apparently there was no particular evidence at the time of the waiver that Garner didn't understand what was happening. In state habeas proceedings, Garner did not raise whether his Miranda waiver was proper. He did raise the claim in federal habeas proceedings, however, and the district court allowed the defense to supplement the record with a defense expert report based heavily on an interview with Garner in 1986 1998. In that interview, Garner was found to have a low IQ of 76, and based on tests performed at that interview (as I understand it) the expert concludes that Garner did not have a full comprehension of the constitutional rights he was waiving in 1992.

  On appeal, the Sixth Circuit instructs the district court to issue the writ of habeas corpus ordering Garner to be freed unless the state retries Garner within 180 days. First, the Sixth Circuit rules that it has de novo review of the Miranda issue. Garner had never actually raised the issue in state court, but the issue wasn't procedurally defaulted because the state hadn't raised the procedural default issue before the district court and therefore had waived the claim. And AEDPA didn't apply because the state courts had never actually addressed the issue before, meaning that there was no state court judgment to defer to. On the merits, the court finds itself greatly persuaded by the defense's expert witness report stating that although Garner appeared to have knowingly and voluntarily waived his Miranda rights, in fact he did not have full comprehension of the meaning of his Miranda rights and the constitutional right to remain silent. Thus the waiver was not actually proper even thought it looked proper, and Garner must be released from death row and set free. Judge Rogers dissented.

  Chances the Supreme Court will take the case if the en banc Sixth Circuit does not: Pretty good, either on the procedural or substantive issues or both. It looks like there's a split on the standard of review (see Judge Rogers' dissent), and off the top of my head I don't think I have ever seen a court conclude that a garden-variety Miranda waiver was improper on the basis of a report like this. Thanks to How Appealing for the link.