It seems that the US Supreme Court is -- finally -- getting a bit exasperated with the Texas Court of Criminal Appeals (the state's final court of appeal for criminal cases) and the 5th Circuit Court of Appeals.
In the past year, the Supreme Court has heard three appeals from inmates on death row in Texas, and in each case the prosecutors and the lower courts suffered stinging reversals. In a case to be argued on Monday, the court appears poised to deliver another rebuke. Lawyers for a Texas death row inmate, Thomas Miller-El, will appear before the justices for the second time in two years. To legal experts, the Supreme Court's decision to hear his case yet again is a sign of its growing impatience with two of the courts that handle death penalty cases from Texas: its highest criminal court, the Court of Criminal Appeals, and the United States Court of Appeals for the Fifth Circuit, in New Orleans.
Perhaps as telling is the exasperated language in decisions this year from a Supreme Court that includes no categorical opponent of the death penalty. Justice Sandra Day O'Connor wrote in June that the Fifth Circuit was "paying lip service to principles" of appellate law in issuing death penalty rulings with "no foundation in the decisions of this court."
In an unsigned decision in another case last month, the Supreme Court said the Court of Criminal Appeals "relied on a test we never countenanced and now have unequivocally rejected." The decision was made without hearing argument, a move that ordinarily signals that the error in the decision under review was glaring. [...] In the Miller-El case, appellate lawyers and legal scholars are buzzing over what they say is the insolence of the Fifth Circuit.
In an 8-to-1 decision last year, the Supreme Court instructed the appeals court to rethink its "dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury. Prosecutors used peremptory strikes to eliminate 10 out of 11 eligible black jurors, and they twice used a local procedure called a jury shuffle to move blacks lower on the list of potential jurors, the decision said. The jury ultimately selected, which had one black member, convicted Mr. Miller-El, a black man who is now 53, of killing a clerk at a Holiday Inn in Dallas in 1985.
Instead of considering much of the evidence recited by the Supreme Court majority, the appeals court engaged in something akin to plagiarism. In February, it again rejected Mr. Miller-El's claims, in a decision that reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion in last year's Supreme Court decision, written by Justice Clarence Thomas.
"The Fifth Circuit just went out of its way to defy the Supreme Court on this," said John J. Gibbons, a former chief judge of the United States Court of Appeals for the Third Circuit, in Philadelphia, who joined a brief supporting Mr. Miller-El. "The idea that the system can tolerate open defiance by an inferior court just cannot stand."
It will be interesting to see exactly how the Court addresses this case. They are likely to be, judicially speaking, rather spectacularly pissed off.
The government is currently talking about splitting the 9th Circuit, containing California and the rest of the west coast. Given the admittedly impressive volume of work -- according to the Times article, it deals with 862 cases per judge, compared to an average of 462 per judge in the other circuits -- it might be more reasonable to split the fifth circuit into Texas and everyone else. Or perhaps, more profitable to discover why the 5th circuit, despite having significantly fewer people inside it, has so very many more cases coming to it than the sprawling 9th Circuit. That would indicate some rather severe problems within the Texas, Louisiana and Mississippi state court systems, and probably their federal districts as well.
Interestingly, and apparently more or less independently, the normally prosecutorially-biased Texas Court of Criminal Appeals is favoring the formation and increased funding for what are called "Innocence clinics".
After years of criticism for favoring prosecutors, the Texas Court of Criminal Appeals is supporting a proposal for a project to investigate prisoners' claims that they were wrongfully convicted.
The project could involve a network of clinics, like those at the University of Houston and the University of Texas at Austin, that investigate inmate claims.
The appeals court will ask lawmakers to increase its 20 (M) million-dollar fund to teach defense lawyers, prosecutors and judges about handling innocence claims, according to Judge Barbara Hervey.
Of course, the difficulty will be in getting the clinics fully funded by the state of Texas. In this day of competing priorities and severely limited state funds -- and Texas' state funding is generally worse than most others, due to their lack of taxes -- it will be difficult to convince state legislators that they should care in the slightest about people who have, after all, been convicted of various crimes. The fact that they may not, in fact, have committed those crimes will be largely beside the point.
But one can hope.Posted by iain at December 06, 2004 11:25 AM