U.S. v. Mandel, s. 77-2487
| Decision Date | 01 November 1979 |
| Docket Number | Nos. 77-2487,s. 77-2487 |
| Citation | 609 F.2d 1076 |
| Parties | UNITED STATES of America, Appellee, v. Marvin MANDEL et al., Appellants. to 77-2492. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Upon consideration of the defendants' petition for another rehearing before the En banc court, 602 F.2d 653, en banc rehearing of 591 F.2d 1347, and the response of the United States, each of the judges in regular active service who is not disqualified having been polled, and it appearing that fewer than a majority of them have voted for it,
IT IS NOW ORDERED that the petition for another rehearing En banc before the enlarged court be, and it hereby is, denied.
I respectfully dissent from the failure of the court to grant further en banc consideration in this case for the reasons expressed in my two opinions previously filed.
In addition, Judge Murnaghan's conditional disqualification now makes it certain that the case can be heard by an uneven number of judges. We know that on one important issue the court was divided 3 to 3, so a rehearing would have to result in a majority vote, one way or the other.
Especially in a criminal case in which people are going to jail by the vote of an evenly divided court, I have more reservations than I can overcome about sending them there without the vote of a majority when the means for getting a majority one way or the other is readily available to the court. I think the court as an institution suffers by our action, for I am not at all sure that we serve properly the appearance of justice when it is within our command so to do.
I am authorized to state that Judge DONALD RUSSELL joins me in this opinion.
STATEMENT WITH RESPECT TO DENIAL OF FURTHER HEARING
This statement is not lightly made. It appears only after reflection, and despite considerations which would normally preclude its seeing the light of day. First, one customarily does not announce a dissent from court action which is taken by vote and without opinion. Second, my past tangential contact with this case while a practising lawyer would, in ordinary circumstances, dictate that I should recuse myself to avoid the appearance of even the slightest possible bias. Third, close association with the other members of this Court, short though it has been, has already thoroughly confirmed my earlier impression of the dedication, skill, compassion and concern for the Court as an institution of each of the members. The fact that four of my colleagues disagree with me is strong indication that my views may be wrong. Those considerations have not deterred me only because of a strange certainty, transcending the ordinary confidence one has in one's convictions, that the Court's failure to decide this case constitutes a serious injustice.
It is nearly as important that cases be decided, and the decisions be accorded finality, as it is that they be disposed of absolutely correctly. Courts have, as a consequence adopted a rule of necessity that an evenly divided appellate court, although it cannot render a decision, affirms the judgment. The unsatisfactory nature of such a decisionless result is reflected, however, in the rule that judgments of equally divided courts are not accorded precedential...
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