Sixth Circuit

Is the Sixth Circuit Choosing Reversal over Duty?

In dissent from denial of en banc rehearing, Judge Griffin notes the recent history of Supreme Court reversals of Sixth Circuit habeas decisions.


In Cassano v. Shoop, a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted capital defendant August Cassano's habeas petition on the grounds that Ohio courts had unreasonably denied Cassano his right to self-representation at trial.

Today, the Sixth Circuit denied Ohio's petition for rehearing en banc, with four judges dissenting (Siler, Thapar, Nalbandian, and Griffin).

Judge Griffin wrote a dissent from the denial suggesting that the court have reheard Cassano and reversed the panel opinion (and the circuit precedent upon which it relied) so as to avoid reversal in the Supreme Court. As I have noted many times on this blog, the Sixth Circuit has a pattern of getting reversed by the Supreme Court in habeas cases.

Judge Griffin surveys this history in his dissent, which begins:

Once again, our court has shirked its responsibility to correct a decision of exceptional importance meriting en banc review. Instead, the majority has chosen reversal over duty. Unfortunately, this path is all too familiar. See, e.g., Davenport v. MacLaren, 975 F.3d 537 (6th Cir. 2020) (denying petition for rehearing en banc), cert. granted sub nom., Brown v. Davenport, 141 S. Ct. 2465 (2021); see also CNH Industrial N.V. v. Reese, 138 S. Ct. 761, 765 n.2 (2018).

Because we "have acquired a taste for disregarding" the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), Rapelje v. Blackston, 136 S. Ct. 388, 389 (2015) (Scalia, J., dissenting from denial of petition for writ of certiorari), the Supreme Court has reversed us twenty-two times for not applying the deference to state court decisions mandated by AEDPA. See Mays v. Hines, 141 S. Ct. 1145, 1149–50 (2021); Shoop v. Hill, 139 S. Ct. 504, 507–09 (2019); Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016); White v. Wheeler, 577 U.S. 73, 79 (2015); Woods v. Donald, 575 U.S. 312, 317–19 (2015); White v. Woodall, 572 U.S. 415, 427 (2014); Burt v. Titlow, 571 U.S. 12, 22–23 (2013); Metrish v. Lancaster, 569 U.S. 351, 365–68 (2013); Parker v. Matthews, 567 U.S. 37, 38 (2012); Howes v. Fields, 565 U.S. 499, 505–08 (2012); Bobby v. Dixon, 565 U.S. 23, 24 (2011); Bobby v. Mitts, 563 U.S. 395, 399–400 (2011); Berghuis v. Thompkins, 560 U.S. 370, 380–91 (2010); Renico v. Lett, 559 U.S. 766, 776–79 (2010); Berghuis v. Smith, 559 U.S. 314, 332–33 (2010); Smith v. Spisak, 558 U.S. 139, 148–56 (2010); Bradshaw v. Richey, 546 U.S. 74, 78 (2005); Bell v. Cone, 543 U.S. 447, 455–60 (2005); Holland v. Jackson, 542 U.S. 649, 652–53 (2004); Mitchell v. Esparza, 540 U.S. 12, 17–19 (2003); Price v. Vincent, 538 U.S. 634, 638–43 (2003); Bell v. Cone, 535 U.S. 685, 693–702 (2002).

Of those twenty-two rebukes, twelve of our reversals by the Supreme Court were by per curiam decisions on petitions for writs of certiorari. See Mays, 141 S. Ct. at 1145; Shoop, 139 S. Ct. at 504; Etherton, 136 S. Ct. at 1149; Wheeler, 577 U.S. at 73; Woods, 575 U.S. at 312; Parker, 567 U.S. at 38; Dixon, 565 U.S. at 24; Mitts, 563 U.S. at 399–400; Bradshaw, 546 U.S. at 73; Bell, 543 U.S. at 447; Holland, 542 U.S. at 649; Mitchell, 540 U.S. at 12. This is a sad record.

The Federal Rules of Appellate Procedure provide an important and necessary remedy for courts of appeals to correct their conflicts and errors of exceptional importance. While en banc hearings or rehearings are not favored, they are authorized when:

(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.

Fed. R. App. P. 35(a).

The majority appears to recognize that the precedentially binding panel decision at issue is clearly incorrect. Nevertheless, it allows it to stand because it concludes that this case is not of exceptional importance. I strongly disagree.

Judge Thapar also dissented from the denial, joined by Judge Nalbandian. HIs dissent begins:

If a criminal defendant wants to represent himself, he must make a clear and unequivocal demand to do so. This is a high standard to meet because "a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney." Martinez v. Ct. of Appeal, 528 U.S. 152, 161 (2000) (citation omitted). Filing a motion to represent yourself on the same day you file a motion asking for specific counsel doesn't count. Nor does asking a question about it on the eve of trial. The panel here erred in concluding otherwise. And that would be true under any standard of review. But it is especially true on habeas review.

NEXT: Subscribing to the Journal of Free Speech Law (Electronic Edition)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Cassano seems like a fun guy.

    He was already serving a sentence for murder when he stabbed his cellmate (Walter Hardy) to death. Cassano had previously stabbed a different fellow-prisoner, who survived, no thanks to Cassano.

    1. I’d say people like Cassano and the Sixth Circuit judges who ruled for him are the *reasons* AEDPA got passed.

      1. The death penalty appellate business is a lawyer $billion scam. All remedies have a dose response curve. Take a miracle cure like penicillin for pneumonia. Before pen, 95% died. After pen, 95% lived. Now give pen 7 years after the onset of pneumonia. Give it to 1 in 100 pneumonia patients. When you give it, in 20% of cases, the patient did not have bacterial pneumonia, give it to the wrong patient. Price pen at over $million. Does not look so good.

        A federal law should end all death penalties to put these scam artists out of business.

        Fentanyl overdoses killed 83000 criminals. I always thought 10000 executions was the correct dose. This Chinese import may end common law crime in the US.

        Move on to the Italian death penalty. A prisoner is violent and troublesome, as in this case. Guard waves a carton of cigarettes. He is stabbed 50 times. The investigation finds he committed suicide. Prison is quiet again. Compare that effectiveness to the above lawyer made mess and total bullshit.

  2. Given this case, every experienced defense attorney with an obviously guilty capital client should advise his client to make ambiguous noises about representing himself in the holes of later getting the verdict reversed on habeas corpus.

    1. In the hopes. Or maybe it’s holes in the law.

    2. I doubt that strategy works very often. Look up “invited error.”

      1. Is that a general rule? Doesn’t seem to work in employment cases resolved administratively. I know a guy who’s escaped being disciplined multiple times with the following trick:

        1. Deliberately submit his response, which had a 10 or 30 day deadline, a few hours late, pleading all sorts of hardships.

        -then- ​
        2a. HR/Admin staff cut him some slack and accept it.
        3a. Let process continue for some months until almost the end.
        4a. File an anonymous complaint against HR/Admin staff for the “extremely serious” violation of “playing favorites with deadline extensions, with discriminatory intent”.
        5a. Panicked HR/Admin staff drop his case.

        2b. HR/Admin staff refuse his paperwork
        3b. Let process continue for some months until almost the end.
        4b. File a complaint in his own name against HR/Admin staff for the “hostile work environment” which took the form of ignoring all his super-relevant evidence about the main issue and “instead arbitrarily focusing on minor technical errors, with discriminatory intent”
        5b. Panicked HR/Admin staff drop his case.

        He’s played both sides multiple times.

        1. Is this like your girlfriend in Canada?

      2. Assuming that this decision remains good law, how exactly would you see the invited error doctrine protecting against ReaderY’s strategy?

  3. I just read the rest of Judge Griffith’s dissent. Whoa. The man does not mince words. 🙂

  4. There’s a book called Who Owns Death, by Dr. Robert Jay Lifton, a psychiatrist who spent his career studying the psychology behind political violence. The book examined the keys players in the death penalty system: judges, juries, prosecutors, governors, guards and executioners. One theme that emerged from the book was that practically every player in the system, when they move the process closer to execution, finds a way to place ultimate responsibility for the killing of the condemned onto someone else or assume someone else will fix an error. Prosecutors know there are judges and juries. Juries know there is the trial judge. The trial judge knows there is an appeal. The court of last resort knows that it’s the Governor who signs the warrant or can grant a commutation. The Governor knows he is just performing a ministerial function and that the jury and by extension “the people” are really the ones who decided it and after all he’s not the executioner. Etc.

    Perhaps the Sixth Circuit majority realizes it is their responsibility ultimately so they won’t be the ones to move the process one step forward.

    1. The responsibility of the judges is to follow the damn law or resign. There’s no issues as to what the law is, and this grandstanding will no doubt result in reversal number 23.

      Moreover, there’s no mistake here. He’s unquestionably guilty, and was already serving a life sentence for murder when he stabbed a fellow inmate over seventy times causing his death.

      I would really like to hear how you would punish an unrepentant killer already serving a life sentence who’s a demonstrated threat to other inmates?

      1. Hmmm…you seem addicted to the psychology of political violence. Tell me about your mother…


    2. “Perhaps the Sixth Circuit majority realizes it is their responsibility ultimately so they won’t be the ones to move the process one step forward.”

      Is that their interpretation of AEDPA? Then I’m not surprised they keep getting overruled.

      I would be interested in the “psychology” of the jurors who decided this guy ought to die, if they ever discover that the 6th Circuit ruled in his favor. Would these jurors breathe a sigh of relief – “thank goodness we’ve finally relieved of our responsibility!”?

      1. Possibly they would. Jurors do often have regrets.

        1. Well, they’ve had a couple decades to consider it, haven’t they?

            1. What if they acquit some guy who goes off and kills someone?

              When trials were faster, the jurors realized that there was a good chance that the person they condemned to death today will meet his Maker within about a year or two. Maybe that’s good and maybe it’s bad, but it would be harder for jurors to shrug off their verdict with a “well, some judge will fix it if it’s wrong.”

              But today, of course, when the jurors probably know the guy they condemn to death will be hanging around a couple of decades while lawyers go over the case with a fine-toothed comb, then the jurors might be more likely to pass the buck (though I admit they shouldn’t).

              1. Did Lifton study reactions of former jurors when they learned that a death sentence of theirs had been overturned? If so, what were the reactions?

                1. Yes, he briefly discusses it. This book was written over 20 years ago, but at the time he says the lay of the land was that it’s unclear if there is an overall trend in capital juror feelings years later. Some do wish their verdict was different, some are emotional wrecks about it, some wish they’d found out more information at the time (like that a defendant had a very low IQ for instance). Also the sense that the responsibility was someone else’s anyway, that they weren’t making a choice, but the “law” or the judge was.

                  1. Interesting…now there’s a bit of a problem in a system which is *supposed* to be a government of laws, not of (wo)men…we don’t want buck-passing, everyone should own the decisions they make, but of course we want officials – and jurors – to act according to law, even if (which I hope is the case in life-or-death situations) doing so makes the doers uncomfortable (we wouldn’t want Alexander Pope’s world “where wretches hang that jurymen may dine”).

                    (I’d make a side comment that most low-IQ people manage not to commit murder)

                    1. Now, my reservation about the death penalty is that if the defendant is poor, evidence of his innocence might get overlooked because of crooked cops and prosecutors, and/or not getting the best quality of defense lawyer (some public defenders are very experienced and skilled, it’s the others I’m speaking of).

    3. Lifton is an opponent of the death penalty. That book was just a hit job.

    4. Perhaps the Sixth Circuit majority realizes it is their responsibility ultimately so they won’t be the ones to move the process one step forward.

      Perhaps there is a bit of a read across to the Army, where (in the days that it was a conscript army) it was discovered that a substantial majority of soldiers don’t like killing the enemy, even if the enemy is shooting at them. With lots of training, and with the officer standing over your shoulder, then the odds can be improved a bit, but otherwise it can be difficult to get your unit firing accurately at the enemy at much above 20% effectiveness.

      Which is probably a good thing for the species, as the consequences of everyone finding it psychologically very easy to kill their fellow humans might not be that great.

      Anyway, it does suggest that maybe we should ditch the death penalty and substitute a sentence of outlawry. That way those who don’t suffer from this psychological block can do the job for the rest of us wimps.

    5. Perhaps the Sixth Circuit majority realizes it is their responsibility ultimately so they won’t be the ones to move the process one step forward.

      If so, how craven of them to rely on this frivolous Faretta claim instead.

  5. When a killer gets the death penalty and is admitted to death row, do the guards taunt him – “welcome to your home for the next 25+ years!”

  6. In fairness, a request for en banc review is by its nature (though not in law) a second or successive petition.

    Mr. D.

  7. Part of the “public relations campaign” alleging SCOTUS is out of control and dominated by extreme conservatives. The headlines will not be that the 6th is out of line with the Constitution, it will be “SCOTUS out of control with another overrule of the 6th: More Evidence that radical changes are needed to SCOTUS to balance the Court.”

Please to post comments