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December 5, 2004

Continuing coverage of capital (in)justice, Texas-style

Providing additional coverage of the various Texas death penalty issues making headlines, this Houston Chronicle story examines why the Supreme Court has had to consider repeatedly capital cases arising from the Fifth Circuit.  Read together with a similar article making the front page of today's NY Times (discussed here), it should be clear to everyone what capital litigators have known for a long time: Texas, especially in death penalty cases, has its own brand of justice.

Relatedly, this Village Voice article by Nat Hentoff provides another review and lament of the role that AG nominee Alberto Gonzales played in Texas capital justice when advising then-Texas Governor Bush on clemency petitions. (Additional background on this issue can be found prior posts entitled The AG and the death penalty and AG nominee Gonzales and sentencing issues.)

December 5, 2004 at 04:41 PM | Permalink


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My husband is in Federal Prison on an IRS
charge (who's sentenced was supposed to be
6 months according to the guidelines, but
the judge upward departed to 24 months). He
works in the library and they received a
2 page memo indicating anticipated usage
of the law library and the hours have been
increased in anticipation of the increased
volume. The memo indicates all appeals
should be handled by attorneys and the
BOP will only address issues through the
court. The memo addresses Booker and
Fanfan and indicates retroactivity to
Apprendi (2000). This memo came out on

Posted by: Peggy Briggs | Dec 5, 2004 7:46:44 PM

As a lifelong Texan, I, too, am distressed and embarrassed by the obstinacy of the Texas Court of Criminal Appeals and the Fifth Circuit (not just in death penalty cases, but in criminal cases generally). However, I take strong exception to this slur in the New York Times article:

"The consequence [of having two 'high courts,' one of which is devoted solely to criminal appeals], some experts say, is a Texas criminal appeals court largely unleavened by general practitioners and the kind of top legal talent that fills corporate boardrooms."

The implication is that any lawyer who can command a "corporate boardroom" salary does so, while the ranks of prosecutors and defenders are staffed by the wash-outs and bush-leaguers. To be fair, the article does quote a Tex. Crim. App. judge who contends that specializion in criminal law is actually a benefit to those who would seek to be judges on a criminal court (imagine that), but the clear point that the authors are trying to get across is that if you really want a judge who knows what he's doing, look beyond the ranks of the criminal practitioners. It seems to have escaped them that some of the top legal talent out there simply finds criminal law more interesting than corporate matters. The problem is not that Texas has a separate criminal court of last resort, it's that the court consists of way too many former prosecutors (and federal courts aren't any different).

Posted by: B | Dec 6, 2004 1:50:27 AM

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