Panel of Chief Judge Batchelder, and Judges Merritt and Moore. Judge Merritt delivered majority opinion; Chief Judge Batchelder concurred in part and dissented in part.
It's a long opinion (74 pages). I have not been through it all yet, but it's a big issue, so I wanted to post right away. The conclusion is:
"Accordingly, the jury verdict at the guilt phase of the trial is affirmed and the verdict of death at the sentencing phase is reversed. The case is remanded to the District Court for a new trial on the sentencing phase of the case pursuant to 18 U.S.C. § 3595."
Chief Judge Batchelder "would affirm the district court in its entirety — both conviction and sentence." She summarizes her position: "I would conclude that the district court was not obliged to admit evidence or argument concerning Michigan’s abolition of the death penalty; nor was it required to instruct the jurors that, in order to impose the death penalty, they must find 'beyond a reasonable doubt' that the aggravating factors outweighed the mitigating factors. Therefore, I respectfully dissent from these two portions of the majority’s decision. I otherwise concur in the majority’s judgment."
I am hoping to review the entire opinion thoroughly and post in more detail ASAP.
