Wrong, But Not En Banc Worthy—2020 Edition
In June, in Davenport v. MacLaren, a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned Ervine Lee Davenport’s first-degree murder conviction because “he was visibly shackled at the waist, wrist, and ankles during trial.” Judge Stranch wrote for the court, joined by Chief Judge Cole. Judge Readler dissented.
Today, by a vote of 8-7, the full Sixth Circuit denied the state of Michigan’s petition for rehearing en banc, even though nine of the sixteen judges believe the original panel decision was wrong. Two of the judges on the court, Judges Sutton and Kethledge, concluded that the panel decision was wrong, but not en banc worthy (something these same judges have concluded before).
Judge Stranch wrote an opinion concurring in the denial of rehearing en banc, on the grounds that the panel decision was correct. Judge Stranch’s opinion was joined by Chief Judge Cole and Judges Moore, Clay, White, and Donald.
Judge Thapar dissented from the denial of rehearing en banc, joined by Judges Bush, Larsen, Nalbandian, Readler, and Murphy. Judge Thapar’s opinion begins:
Thirteen years ago, on a cold night in January, Earl Davenport killed Annette White. He closed his hand around her neck and held it there as she struggled against him. Minutes later, she was dead.
Despite the overwhelming evidence of Davenport’s guilt, a panel majority voted to vacate his conviction. It did so without even applying
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