You'll have to forgive the two legal posts in one day from me and Armando, but as some of you know, I'm a law student, and so I'm keenly interested in the intersection between law & politics. One of these days, I'll do a post on some of the legal blogs
mentioned below, but for now, I'd like to draw your attention to an eye-catching article
about the death penalty in tomorrow's New York Times (already available on the web). Whether or not you support the death penalty, the story is troubling.
The two appellate courts responsible for adminstering capital cases in Texas - the Texas Court of Criminal Appeals and the Fifth Circuit Court of Appeals (based in New Orleans) - have truly acted lawlessly in their application of the death penalty. They have consistently defied the United States Supreme Court time and again:
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.
...
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. [Emphasis added.]
As the Times notes, the Supremes appear likely to lay the smackdown on the Fifth Circuit for the second time in the same case, known as Miller-El v. Cockrell. Perhaps not so surprisingly, race has come into play here:
(More below the fold.)
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. [Emphasis added.]
"Akin to plagiarism" - wow. Those are pretty strong words, coming from a paper which all but refuses to use the word "lie" in a straight news story. And meanwhile, the state Court of Criminal Appeals - dubbed by Texas Monthly last month as the "Worst Court in Texas" (subsc. req'd.) - has similarly ignored the Supreme Court by upholding death sentences where jurors were asked to lie during the sentencing phase. I'm not making this up.
Radical extremist Republican Rep. John Hostettler recently opined that we should ignore federal court decisions we don't like because, hey, the courts don't have their own army to enforce their rulings. I have a feeling he was talking about district court judges like James Robertson, who recently threw up a roadblock to the Bush Adminstration's military tribunal plans, and not the Rehnquist-Thomas-Scalia Supreme Court.
But when lower courts start ignoring the SCOTUS, then you know we're in trouble. Fortunately, the Supremes seem to be doing the right thing here, but truly, they shouldn't have to be playing whack-a-mole with renegade courts off the Gulf of Mexico - especially when people's lives are on the line.