The Supreme Court today granted a petition for rehearing in the death penalty case of People v. Grimes. As noted, rehearing in Grimes, although not necessarily expected, is not startling either. In January, the court divided 4-3 on whether there was prejudicial error at the penalty phase of the trial and one of the justices in the majority — Marvin Baxter — has retired and been replaced. Also replaced was the pro tem Court of Appeal justice who voted with the dissenters. The court’s docket does not yet show who voted for rehearing, but we assume it was dissenting Justices Kathryn Werdegar and Goodwin Liu along with new Justices Mariano-Florentino Cuéllar and Leondra Kruger. Cuéllar and Kruger replaced retired Justice Baxter and the pro tem justice and were thus able to rule on the rehearing petition.
We’ve called the grant of a rehearing petition “one of the rarest of rarities at the Supreme Court.” And, indeed, we believe that the Supreme Court hasn’t granted rehearing in almost 20 years, when it did so in May 1996 in American Academy of Pediatrics v. Lungren (1996) 51 Cal.Rptr.2d 201. However, the conditions are right when, as in Grimes and American Academy of Pediatrics, a court in transition issues a divided decision and a justice in the majority is replaced before a rehearing petition is ruled on. Those conditions still exist in four cases besides Grimes (see here, here, and here): Johnson v. California Department of Justice, People v. Johnson, People v. Mosley, and Berkeley Hillside Preservation v. City of Berkeley. It would not be surprising to see another rehearing grant within the next few months.
[8:10 p.m. Update: We’ve now seen the order granting the rehearing petition and our assumption is correct — the votes for rehearing were by Justices Werdegar, Liu, Cuéllar, and Kruger.]