Analyzing the Fifth Circuit

The Houston Chronicle recently had an interesting article pointing out that the Fifth Circuit Court of Appeals is, essentially, a lawless court when it comes to the death penalty:

5th Circuit Court rules in its own way
Its decisions have a history of defying the Supreme Court

By HARVEY RICE
Copyright 2005 Houston Chronicle
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DEFIANT HISTORY
In at least six cases in the past five years, the U.S. Supreme Court has rebuked the 5th U.S. Circuit Court of Appeals for not following the law laid down by the higher court in death-penalty cases.

• June 2001: Supreme Court overturns the 5th Circuit Court for the second time in the case of Texas killer Johnny Paul Penry. The high court said in a
6-3 ruling that the lower court failed to enforce the spirit of its 1989 decision in the same case requiring juries to consider evidence that could lead to a life sentence rather than death.

• February 2003: The court finds in an 8-1 decision that the 5th Circuit should have given Thomas Miller-El a chance to appeal his capital murder conviction. The court explicitly outlines how the 5th Circuit should analyze the case.

• February 2004: Citing what it calls prosecutorial misconduct, the Supreme Court throws out the sentence of Delma Banks Jr. Ruling 7-2, the court says Bowie County prosecutors allowed two key witnesses to lie to the jury and did not tell the defense that one witness was a paid police informant and the other a two-time felon whose arson charge was dropped in exchange for his testimony.

• June 2004: The Supreme Court rejects a method of review devised by the 5th Circuit Court for cases in which the accused has low intelligence. In a 6-3 ruling in the case of Robert Tennard, the court says the test "has no foundation in the decisions of this court."

• June 15: The Supreme Court again reverses the 5th Circuit in the Miller-El case, saying in a 6-3 ruling that the lower court's reasoning "blinks reality." During oral arguments, the justices express displeasure that the 5th Circuit adopted the reasoning of the lone dissenting opinion in the Supreme Court's previous rebuke to the lower court.
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Even with its reputation for being unfriendly to death penalty appeals, the 5th U.S. Circuit Court of Appeals was expected to follow directions last year when they came from the U.S. Supreme Court.

The high court had issued at least three opinions chastising the lower court for failing to abide by previous rulings. Most recently, in an 8-1 decision in 2003, it had lambasted the appeals court for rejecting an appeal by condemned murderer Thomas Miller-El and sent it back for a new hearing.

So observers were floored when the 5th Circuit issued a new opinion in the Miller-El case that ignored a majority ruling spelling out how the lower court should rule.

Even more surprisingly, the lower court used the language of the lone dissenting justice, Clarence Thomas, in some cases lifting entire paragraphs without attribution.

That instance convinced many that the lower court had crossed a line and was openly defying the Supreme Court.

"It's extraordinary," said Neil Siegel, assistant professor of law and political science at Duke University. "They got smacked down once and they came back with what was verbatim from the sole dissent. It appears to be an act of outright defiance."

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"The 5th Circuit is more out of step than any circuit in the country when it comes to the death penalty," Siegel said. "You just don't see anything like this in any other court. The way they differ from other courts of appeal is the aggressiveness and the willfulness in capital cases.

"Part is ideology and part is willfulness, a refusal to get the message from the Supreme Court," he said.

To read the entire article, go here.