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June 11, 2013

Notable capital habeas echo from Firth Circuit after complaint about Judge Jones

As reported in this local piece, headlined "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal; Execution still slated for tomorrow," there has now been at least one procedural consequence of the resent complaint filed against Fifth Circuit Judge Edith Jones concerning her comments at a law school about the operation of the death penalty.  Here are the basics:

The chief judge of the 5th U.S. Circuit Court of Appeals this afternoon ordered [via this panel ruling] a new three-judge panel of the court to be assigned to review the case of Texas death row inmate Elroy Chester who argues that comments made by Judge Edith Jones, detailed in a complaint filed last week with the court, indicate she cannot fairly rule in his case.

Whether Chester will be executed as planned, tomorrow night, June 12, is now in limbo. Chester was sentenced to die for the 1998 death of a well-liked Port Arthur fireman who he killed as part of a months-long crime wave. There is no doubt Chester is guilty of the crime, but there remains doubt about whether he is mentally retarded. If so he would be barred from execution under a 2002 U.S. Supreme Court ruling that the practice violates the constitutional ban on cruel and unusual punishment.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February....

In response to the complaint, filed June 4, Chester's attorney, Alaska-based Susan Orlansky filed a motion with the Fifth Circuit to stay Chester's execution and to have a new three-judge panel review his previous appeal to the court – or, in the alternative, to have his execution stayed until the investigation into the complaint about Jones' behavior could be resolved. "The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case."

Tuesday afternoon, Chief Judge Stewart agreed that a new panel should be constituted, but declined to stay tomorrow's execution – leaving three newly-assigned judges a little more than 24 hours to decide whether Chester's previous appeal should be revisited.

In determining that a new panel should be appointed, Stewart noted not only that Jones was subject to a misconduct complaint that raises "questions about the impartiality of the judge as respects petitioners like [Chester] and his underlying claims," Stewart wrote also that his duty to review that complaint gives him a "substantial role" in considering whether it should go forward. The third member of the panel, Judge James Dennis, is also placed an an odd conflicting position because the complaint against Jones also raises an issue about her as it pertains to an ugly episode during a 2011 oral argument during which she slams her hand on a desk and tells Dennis to "shut up" as he is questioning a lawyer about the case at bar.... "Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote today, though he declined to issue a stay of tomorrow night's slated execution, which would make Chester the 499th inmate put to death in Texas since reinstatement of the death penalty.

In a separate opinion, Dennis concurred with Stewart's decision to move the case to three different judges, but opined that the court should also stay the execution "in order to give the new panel adequate time to consider whether to recall the mandate and take further action in this case," he wrote. "If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled," he continued. "Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable."

Recent related posts:

UPDATE:  As reported in this local piece, Elroy Chester was executed by the state of Texas on Wednesday June 12.

June 11, 2013 at 09:04 PM | Permalink

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Comments

Judge Dennis is a total twit. Um, this idiot Dem judge ever hear of the standards for a stay? He's willing to stay an execution over a last-minute appeal with no evaluation of the standards for granting a stay. And what? Recall mandate, after cert. denied and two years?

Can anyone defend this lawlessness?

Posted by: federalist | Jun 12, 2013 2:17:01 AM

Oh, and why should the state bear the problems with the change of panel--it wasn't the state that filed the last minute appeal.

Posted by: federalist | Jun 12, 2013 7:26:02 AM

A new panel has now denied Chester's motion for a stay.

Posted by: Jay | Jun 12, 2013 2:03:19 PM

http://www.chicagotribune.com/sns-rt-texas-executes-elroy-chester-for-killing-man-in-20130612,0,2451172.story

Chester was executed. To the 'rat "Judge" Dennis-- ha ha ha ha ha ha. What is it about 'rat "judges anyway? Do they just have a soft spot for capital murderers, or do they like to yank the rug out from under victims' families.? With respect to this 'rat, he couldn't even be bothered to articulate the standards for a last minute stay of execution. So either this 'rat is an idiot or he's dishonest. Which is it liberals?

Posted by: federalist | Jun 12, 2013 9:09:38 PM

When questions of actual innocence are not present, the murder(s) grotesque, and the trial fair, get on with it. Interminable delay for manufactured procedural reasons (an unproven accusation by interest group members against one appellate judge) is not excusable. The real reform needed for the death penalty is that, when the three conditions I have mentioned are met, the execution take place forthwith.

Posted by: Bill Otis | Jun 12, 2013 11:29:50 PM

Bill, I totally agree--but the 'rat "Judge" Dennis' opinion was deplorable. He didn't articulate the standards for a stay, and he blew off the state's and the victims' interest in the enforcement of sentence of death. This, in my mind, calls into question his fitness to be a judge---who is he to blow off the law, and for what--to help an absolutely vicious murderer . . . .

It is funny how NONE of the libs in here (who, by the way, never cease trying to demonstrate how moral they are compared to a troglodyte like me) dare defend this Clinton "judge." Dennis is a disgrace to the bench. I damned well mean that. He is either an idiot (how in the world doesn't a Fifth Circuit judge know the standard for last-minute stay applications) or tipped the scales to help a brutal capital murderer.

The sad thing is that liberals, who NEVER cease yapping about "the rule of law" (yeah, only when they're trying to hamstring American fighting men or trying to get those who committed warlike acts against America freed) actually think that 'rat "judges" like Dennis are worthy of praise. Newsflash to the liberals---the rule of law means that the law gets followed--even when it means that a precious murderer is going to get the big jab.

So let's see you liberals in here--if I am so dumb, why won't you step up and defend this 'rat "judge"? Surely you all can defend this 'rat. Or are you tired of eating so many rhetorical right hands? Remember Cali Capital Defense Attorney--he skulked away. Joe? Let's see what you guys have.

Maybe, just maybe, one of the 'rat's law clerks is reading this post. Well, if you are, know that your 'rat boss twists the law to help out a vicious capital murderer. And be sure to pass this along to that 'rat.

Posted by: federalist | Jun 12, 2013 11:47:09 PM

federalist, I am not a liberal, but I'll defend Dennis's opinion anyway. The case was being transferred to a new panel. All he did was say that the new panel should have more than one day to study the issues. What's so terrible about a short stay to enable the panel to review the record and the issues? A man is about to be executed. Another few days hardly seems extreme. Anyway the miscreant is now dead.

Posted by: former prosecutor | Jun 13, 2013 10:02:19 AM

federalist, maybe i'm missing something but why is Dennis a "rat judge"?

Just because he would grant a short stay to give a new panel more than one day to study the record and issues--??

Why are you foaming at the mouth about a short stay for this purpose??

Posted by: current prosecutor | Jun 13, 2013 10:08:21 AM

"Maybe, just maybe, one of the 'rat's law clerks is reading this post. Well, if you are, know that your 'rat boss twists the law to help out a vicious capital murderer. And be sure to pass this along to that 'rat."

Perhaps you should tell him yourself. I could post your full name and place of employment, if you would like. That way he would know how to contact you. I could also throw in your Texas bar number for good measure, just to make sure he knows it's the right guy.

Posted by: The Death Penalty Sucks. | Jun 13, 2013 6:18:28 PM

former prosecutor & current prosecutor --

Why do you object to the decision not to stay the execution when the new panel had no such objection? Wouldn't the new panel know more about its own deliberative needs than you? Couldn't it have sua sponte stayed the execution if it felt in any way that it needed more time?

Posted by: Bill Otis | Jun 13, 2013 7:12:29 PM

First of all, former/current prosecutor, I would think that I wouldn't have to explain that murder victims' families often make plans to witness the execution, or simply were expecting that on a date certain that justice would be carried out. To upset those expectations is a problem, and the 'rat judge (I hope everyone got that 'rat=Democrat.) didn't even take that into consideration in his opinion. Surely, the learned judge knows that a unanimous Supreme Court has stated: "Both the State and the victims of crime have an important interest in the timely enforcement of a sentence. " Hill v. McDonough, 547 US 573 (2006).

Second, it goes without saying that federal courts, after a full round of habeas, should be very very circumspect in granting a stay where there is a last-minute stay application. AEDPA, after all, was passed precisely to deal with federal court stays after a full round of habeas.

None of this made its way into the learned judge's opinion. And what of the gamesmanship of the lawyers for the capital defendant? Should federal courts treat unquestionably guilty capital litigants more favorably than the law abiding when it comes to litigation gamesmanship? The answer to that question is obviously no, and it should really go without saying.

Finally, we have the unique federalism issues here---why should the state bear the risk that federal panels need to be changed? Federal habeas litigation is an intrusion into the state criminal justice system---so why should it be made more intrusive because the federal court feels the need to switch panels? And what of the fact that this murderer filed his stay application at the last minute? The capital murderer is the one who created the issue, and he should be the one to bear the risk.

This isn't hard, and a weak "well, we should have a stay because well, it will give the new panel time" is just a fetishism for some sort of uber-due process that is untethered to the law. "Judge" Dennis wanted to flout the law for the benefit of a vicious murderer. Calling him a typical 'rat "judge" is about the nicest thing I can say.

My better judgment tells me to ignore TDPS---but I will call him out on his thuggish behavior. TDPS doesn't like what I have to say, so he resorts to threats. One wonders if we'll see others call him or her out on such lousy behavior.

Posted by: federalist | Jun 13, 2013 10:23:29 PM

TDPS --

Do you really think even harsh criticism of a judge on an Internet forum would, or should, subject the critic to sanctions of any kind?

Judges are not royalty. They are public servants. They should expect, and they get, a great deal of criticism. That's the way it works in a democracy with a First Amendment. Would you have it any other way?

Posted by: Bill Otis | Jun 13, 2013 10:34:44 PM

Elroy Chester is dead. He was killed by The People of The Great State of Texas. I am one who believes that the Sixth Commandment of Thou Shalt Not Kill should be observed. There is no exception for Y'all Can. If you do not believe in God and the hereafter and the Pearly Gates then go ahead and laugh at me. But if you are God Fearing and do not wish to get sent to Hell when your time comes. And if you live in the State of Texas and are a citizen thereof. Then think up what you will say to Saint Peter when your time comes. My guess is that it going to be: I did not kill him, we all did.

Posted by: Liberty1st | Jun 13, 2013 11:46:55 PM

Maybe if Rat Jones (note the lack of apostrophe) behaved like a judge instead of like a partisan hack the change of panel would not have been needed at all.

Posted by: federal-isnt | Jun 14, 2013 10:12:53 AM

federal-isn't --

Gosh, that's such a cute nickname. Certainly contributes to the maturity of the conversation.

But I digress.

Perhaps if the complainants behaved like citizens who respected the right of others -- yes, even judges -- to hold and speak opinions at odds with their own, they never would have filed the complaint. Then, as you were saying, "the change of panel would not have been needed at all."

Ya think?

Posted by: Bill Otis | Jun 14, 2013 1:26:04 PM

If you want to interpret the "sixth commandment," fine, you can also determine it warrants veganism, if you want. The actual text is written along a bunch of things that provide the death penalty as a suitable punishment. So, it seems to most of us better interpreted as "thou shall not murder" or some such.

Anyway, my state doesn't allow the death penalty. So, don't know how much we over here (though for some reason my local sports station has Gov. Perry promoting Texas, many states away) are to blame for this particular execution.

All this debate among prosecutor types is interesting. Carry on.

Posted by: Joe | Jun 14, 2013 4:17:07 PM

Joe --

Never listen to a prosecutor. You know how they are.

Posted by: Bill Otis | Jun 14, 2013 7:30:19 PM

federal-isn't--cute nic. Let me give you a piece of advice--simply ranting on here doesn't get it done. You have no idea what Judge Jones said or the manner in which it was said. And really, is it horrible for a judge to recite demographic facts? Or to criticize Atkins?

More to the point--you don't seem to realize that you don't even address my argument. The issue is not the fault of Judge Jones--but rather whether a capital murderer who has gone through a full round of habeas can, years after the fact, file a motion to recall mandate right before his execution date and expect that the state will have to bear the risk of a problem with the panel. The answer to that seems obvious, and the question is why didn't the 'rat Dennis at least deal with the issue. The answer is plain--the 'rat simply is willing to twist the law to benefit a capital murderer and put victims through hell. Like I always say--what is it about Democrats and capital murderers?

So guys--looks like I hold the field--anyone want to jump in the ring and test my big right hand?

Posted by: federalist | Jun 14, 2013 9:57:54 PM

Federalist, you have a glass jaw. What do you make of the following:

"Supreme Court Chief Justice John Roberts on Wednesday took the rare step of ordering a review of a powerful federal judge accused of making denigrating statements against minorities and people with mental disabilities.

Roberts formally ordered the District of Columbia circuit court to review the complaints against Judge Edith Jones of Houston, who sits on the Fifth Circuit U.S. Court of Appeals.

The complaint, filed by a group of civil rights organizations, legal ethics experts, and law professors, alleges that Jones made a number of inappropriate remarks at a Feb. 20 speech the University of Pennsylvania School of Law. Her remarks were not recorded at all, but according to Texas Civil Rights Project, she called certain racial groups like African-Americans and Hispanics "predisposed to crime" and called defendants' claims of racism nothing more than "red herrings."

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Jones also allegedly made a number of inappropriate remarks about capital punishment, such as that Mexican nationals would prefer to be on death row in the U.S. than in a Mexican prison and that the death sentence is beneficial for defendants because they are more likely to make peace with God before their execution. She also allegedly expressed skepticism about defendants who claim to be mentally retarded."

Posted by: former prosecutor | Jun 15, 2013 12:19:04 PM

I think the new panel should indeed have taken more time. the speed to execute is unseemly. Moreover, Judge Edith Jones may be in for some rough times:

Supreme Court Chief Justice John Roberts on Wednesday took the rare step of ordering a review of a powerful federal judge accused of making denigrating statements against minorities and people with mental disabilities.

Roberts formally ordered the District of Columbia circuit court to review the complaints against Judge Edith Jones of Houston, who sits on the Fifth Circuit U.S. Court of Appeals.

The complaint, filed by a group of civil rights organizations, legal ethics experts, and law professors, alleges that Jones made a number of inappropriate remarks at a Feb. 20 speech the University of Pennsylvania School of Law. Her remarks were not recorded at all, but according to Texas Civil Rights Project, she called certain racial groups like African-Americans and Hispanics "predisposed to crime" and called defendants' claims of racism nothing more than "red herrings."

Jones also allegedly made a number of inappropriate remarks about capital punishment, such as that Mexican nationals would prefer to be on death row in the U.S. than in a Mexican prison and that the death sentence is beneficial for defendants because they are more likely to make peace with God before their execution. She also allegedly expressed skepticism about defendants who claim to be mentally retarded.

Posted by: current prosecutor | Jun 15, 2013 12:22:18 PM

Federalist, you write " I would think that I wouldn't have to explain that murder victims' families often make plans to witness the execution, or simply were expecting that on a date certain that justice would be carried out. To upset those expectations is a problem"

I don't find the inconvenience of the family members to be a particularly weighty argument in support of the myopic insistence on the date and time of execution of a human being-given that a new panel had just been assigned to review the case the day before.

Posted by: current prosecutor | Jun 15, 2013 12:26:32 PM

current prosecutor --

What makes you think you have better information about the new panel's alleged need for more time than the new panel itself did? Do you know more about the case than they do?

In addition, carrying out a death sentence after fifteen years can hardly be called rushing things. It could -- and should -- be called the opposite.

Posted by: Bill Otis | Jun 15, 2013 1:14:43 PM

Glass jaw? Hardly. Whether or not Edith Jones violated any ethics code is irrelevant. The issue is who should bear the risk of a federal panel not being able to review a last-minute stay application--the state or the capital murderer. You two make no arguments other than some BS nonsense about "unseemly" rush to execute? Huh? The habeas denial is something like 2 years old. How is that a rush to execute? Chester chose his last-minute petition strategy--where is that in your analysis? Nowhere, and you're saying I have a glass jaw. Nope--you're just not very good at this.

Guys, remember, Chester has had a full round of habeas. Then he files a last-minute petition to recall mandate. Should the state and victims' families get jerked around because the federal courts don't seem to have their house in order? And whether you think the victims' families' interests are important or not, the Supreme Court has said otherwise. And on top of that--where's your legal analysis setting forth how Chester qualifies for it? The Supreme Court has said what the factors are--and all you're doing is pointing to a reconstituted panel.

As for your discussion about what Jones may or may not have said--who cares if she says that there are bogus MR claims? There are. And as for the conditions of Mexican prisons--is that really an inappropriate subject? With respect to the correlation of race/ethnicity and crime, I suspect that Judge Jones was careful about how she said it---unlike the "wise [sic] Latina"--who explicitly linked ethnicity and the quality of judging.

Posted by: federalist | Jun 15, 2013 3:54:41 PM

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