A messy en banc split

In December 2008, a Fifth Circuit panel (King, Stewart, Prado) affirmed a district court's judgment, entered upon a jury verdict, finding that Harry Connick's D.A. office had been "deliberately indifferent to the need to train, monitor, and supervise its attorneys on Brady principles" (= disclosure to criminal defendants of potentially exculpatory evidence), and socking the defendants with a $15M verdict. (This on a Section 1983 suit by a guy sentenced to death for murder with the help of an armed robbery conviction obtained via Brady violation; after 18 years in prison, the guy got the robbery conviction tossed, was retried for murder, and acquitted.) The panel however found that "the district court erroneously included non-liable defendants in the judgment" and dismissed them.

The panel decision was appealed to the court en banc and accordingly vacated pending the en banc decision. Yesterday, the decision came down:

By reason of an equally divided en banc court, the decision of the district court is AFFIRMED. The panel opinion was vacated by the grant of rehearing en banc.

So, what about those "erroneously included non-liable defendants," who presumably are now on the hook for their share of $15M? Ouch. That ain't cool. You'd think the en banc court could at least agree to reverse the district court in part.

The brief per curiam decision was enlivened by some bitter judges. Clement wrote an opinion on why the district court should be reversed, attracting Jones, Jolly, Smith, Garza, and Owen. The panel judges, plus Wiener and Elrod, wrote to criticize Clement's opinion. Jones wrote alone to say why the district court was really, really wrong. And Jolly wrote an odd little opinion:

Ordinarily, when an en banc case results in a tie vote, we affirm the district court judgment without opinion. That is the way I would prefer it today. However, notwithstanding that there is no majority opinion, and that no opinion today will bind any court or future party in this circuit, each side has now written for publication, and judges are joining one or the other of the respective opinions. I join Judge Clement’s opinion because, as between the two, it shows the intellectual fortitude of meeting head-on, in a specific workmanlike manner, the truly difficult legal issues presented by this case.

The bitchiness of this seemingly suave opinion is not immediately obvious. But then one counts judges. Six judges wrote/joined Clement; five judges wrote/joined Prado. Dennis recused. That leaves Davis, Barksdale, Benavides, and Haynes as judges who evidently voted, but who didn't join any opinion. In other words: if you'd really prefer not to speak, Judge Jolly, why not just keep your mouth shut -- instead of slamming Prado et al. for lacking "intellectual fortitude" and lack of "workmanlike manner"? One suspects that Barksdale and Southwick voted the same way Jolly did, but had the dignity not to sign onto any opinion. Jolly had the same option.

... How Appealing noted the en banc decision here, and linked to this Times-Pic story, neither noting the awkward position of the un-dismissed (?) defendants. Dropped Mr. Bashman a line, as it seems the sort of quirk he delights in noting.