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Judges Of Death

As the nation pondered the fate of a young California man being sentenced to death, the case of another man, one lesser-known, one without wealth or whiteness, comes back before the nation's highest court, after having been shunted through a series of killing courts in Texas.

Thomas Miller-El, 53, was just before the U.S. Supreme Court about 2 years ago, when 8 of the 9 justices determined that the Court of Appeals erred in denying a certificate of appealability" (COA) on Miller-El's claim of racial discrimination in his jury selection.

Back before the Texas state and federal courts, Miller-El expected them to respect the decision of the U.S. Supreme Court. But, as the saying goes, he had another thing coming.

Both the Texas Court of Criminal Appeals (sort of a Texas Supreme Court for criminal cases), and the 5th Circuit U.S. Court of Appeals, promptly denied Miller-El's claims, by virtually ignoring what the majority of the Supreme Court said, and glomming onto what was written by the lone dissenter in the case, Associate Justice Clarence Thomas, to support their denials.

In legal circles, this is almost unheard of. One former chief judge, John J. Gibbons, who sat on the 3rd Circuit Court of Appeals (in Philadelphia), said, The idea that the system can tolerate open defiance by an inferior court just cannot stand" (The New York Times, 12/5/04).

We shall see.

A dissenting opinion, in legal opinions, have some, if limited value. They demonstrate that courts were split on various issues. They speak down through the pages of history of errors made by the present court, that will hopefully be seen later. But, in a strictly legal sense, they mean nothing. It is a fundamental legal principle that majority opinions carry the deciding weight of which way cases are decided. Dissenting opinions have, comparatively speaking, no weight.

So, if that is so, why did a majority of the Texas Criminal Court of Appeals, and the 5th Circuit Court of Appeals, essentially ignore the determination of the majority opinion, and deign to abide by the dissenting opinion? Why would learned, experienced judges dare do such a thing?

The answer (or at least part of it) may lie in the fact that 80% of the Texas appellate court are composed of ex-prosecutors, who have learned, from their former jobs, to give short shrift to arguments by defendants. Many of them probably worked their way up onto the bench by doing the very things that the Supreme Court has criticized, so they simply don't want to agree that their own professional actions (like striking Blacks off juries) were unconstitutional. But, what of the 5th Circuit, where federal judges, not state judges, hold sway?

The answer may lie, not in the law, but in the realm of politics. For judges, though they wear black robes, are yet political creatures. Even in the federal system, they are appointed by, and in, the political system. Senators submit them, and presidents nominate them. And how do they come to the attention of national political figures? By demonstrating their conservative" credentials. Judges, in the Miller-El case, dared to violate fundamental rules of judicial procedure because they were auditioning" for higher seats in the judicial hierarchy. Mr. Miller-El was nothing more than a Black, living stepping stone of the Stairway of Ambition.

Moreover, Texas is infamous for its taste for death, as amply demonstrated by the bloody reign of George W. Bush, who presided over the executions of over 150 men, and several women. While Texas Governor, Bush undoubtedly appointed at least some of the judges to the state's appeals court, and surely (as president) looked kindly to those nominations to the 5th Circuit federal bench of jurists who shared his penchant for cutting judicial corners when it came to the death penalty.

It is only in that fractured, political light that their actions begin to make sense.

Another saying: Law is but politics, by other means.

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