I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Michelle Byrom–What kind of representation did she have? Part 2: How closely decided were the cases?

Michelle Byrom had a direct appeal, a post conviction appeal, a decision by a federal judge on habeas, and a decision by the Fifth Circuit on habeas.  She filed certiorari petitions in the United States Supreme Court.

You will frequently see proponents of death sentences count up the judges involved in the process and say something on the lines of “Several dozen judges have reviewed this case.”  In every case, that is misleading, because the judges really are looking at the process and not whether a “right” result was reached.  This is even more so true when evidence of innocence that is not a slam dunk (a slam dunk being, say, DNA evidence) develops along the way.  After a jury has rendered a guilt verdict, it is very hard to get a court to attend to non-conclusive evidence that points toward innocence.

The point that lots of judges reviewed the case would be less appropriate in the Byrom case.  In reading the Mississippi Supreme Court opinions, one gut reaction I had was that the case would have turned out differently if it had gone through the courts at a different time.

A careful look at the voting makes this point even more clearly.

On direct appeal, the vote was 5-3 to uphold the conviction.  Justice Carlson wrote affirming joined by Justices Smith, Waller, Cobb, and Easley.  Justice Pittman dissented joined by Justices McRae and Graves.  Justice McRae dissented.  While Justice Diaz wrote a dissent (quoted at length in Justice McRae’s opinion), when the opinion was released, he was on leave and thus his vote did not count.  If whatever ultimately lead Justice Cobb to join the Justice Dickinson dissent in the post-conviction case (discussed below) had caught her attention here, and Justice Diaz’s vote had counted, the result would have been 5-4 to reverse.

On collateral appeal, the vote was 5-3 again, but with a difference.  Justice Carlson again wrote the majority upholding the conviction and sentence, joined again by Justices Smith, Waller, and Easley.  Justice Randolph had replaced Justice Pittman and voted with the majority.  Justice Dickinson had replaced Justice McRae and dissents joined by Justice Graves.  Here, Justice Randolph replacing Justice Pittman and, once again, the lack of Justice Diaz’s vote make the difference; if Justice Pittman stayed in place on the collateral appeal and Justice Diaz voted as he had intended to vote on direct appeal, the result would have been 5-4 to reverse.

When the first case came down, the court was extraordinarily polarized, and I have to wonder whether that polarization (exemplified by Justice McRae’s dissent and Justice Carlson’s response to it in the direct appeal opinions) had an impact on the vote on the direct appeal.  Whether or not it did, what is clear is the contingency of this result– how close it came to a reversal.

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