11th Circuit Judges Split on Decision Length; Concurrence Quotes Mark Twain

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Two judges on the Atlanta-based 11th U.S. Circuit Court of Appeals have joined (PDF) to uphold a murder conviction despite the defense lawyer’s quart-a-day drinking habit, but one of the judges concurred only in the judgment because he thought his colleague too wordy.

Judge Ed Carnes wrote a 105-page opinion upholding the conviction and Judge J.L. Edmondson concurred, How Appealing reports. “I—very respectfully—do not join in Judge Carnes’ erudite opinion,” Edmondson wrote. “I stress that it is not because the opinion says something that I am sure is wrong or I am sure is even likely wrong. I agree with much of the opinion, at least. But the opinion says a lot and says more than I think is absolutely needed.

“In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk. Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. … Moreover, long opinions, even if correct in every detail, generally make it harder for readers to separate a holding from dicta. … Sometimes, the oddest bits are lifted out of opinions—especially the longer ones (often words as to some peripheral point)—and later quoted flatly as law: as if someone was quoting a statute.”

In a footnote, Edmondson writes that long decisions appear to be increasing, or at least they are coming across his desk more often. He cites Mark Twain, who said, “If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare.” He takes care to avoid criticizing Carnes, however, saying he believes he understands why the judge went longer in the case.

Edmondson and Carnes upheld the sentence of Robert Wayne Holsey, convicted of shooting a police officer after robbing a convenience store in Milledgeville, Ga. The Atlanta Journal-Constitution has a report on the decision that is partly reproduced at Sentencing Law & Policy.

Judge Rosemary Barkett dissented. She disagreed with the Georgia Supreme Court, which had found mitigating evidence uncovered on appeal was cumulative of evidence submitted by Holsey’s lawyers at trial. Barkett said jurors only heard a brief mention that Holsey had been beaten as a child, and did not hear expert evidence explaining a report that he was borderline mentally retarded.

“Rather than conduct an investigation that could lead to the discovery and presentation of the important mitigating evidence,” Barkett wrote, “Holsey’s lead defense lawyer drank a quart of vodka every night of Holsey’s trial while also preparing to be sued, criminally prosecuted, and disbarred for stealing client funds.”

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