Supreme Court rejects two lower court rulings to allow Texas execution to proceed

The high court's move, over the objection of the three liberals, came a day after a dissenting Fifth Circuit judge published a fake majority opinion in Jedidiah Murphy's death penalty case.

NOTE: Coverage of the Supreme Court treatment of this case can be found here, lower in this post.

Within 24 hours of my having written about the extremism of the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith published a fake opinion — "the Fifth Circuit panel opinion that should have been issued" — as an attachment to his dissent in a case where he was on the losing side of a 2-1 vote.

In that vote, the Fifth Circuit refused Texas’s request to lift a stay of execution that a district court had granted on Oct. 6 to Jedidiah Murphy. Texas wants to execute Murphy on Tuesday for the 2000 killing of 80-year-old Bertie Lee Cunningham, but, for now, the federal courts will not let them do so.

The district court had issued Murphy a stay of execution because of ongoing questions about Texas’s post-conviction procedures and the availability of DNA testing (or, to be more precise, unavailability) for certain people facing execution, including in a case pending before the Fifth Circuit.

Texas appealed Murphy’s case to the Fifth Circuit, asking the appeals court to vacate the stay of execution. In declining to do so now, Judge Leslie Southwick — a George W. Bush appointee — wrote for the court’s majority, “We agree with the district court that a stay is appropriate at least until a decision in that [other] case.”

As such, Southwick concluded, “We enter no ruling on the motion to vacate the stay at this time.” After the Fifth Circuit issues an opinion on the DNA testing question in the other case, Southwick wrote for the court, “[W]e will order additional briefing on whether the stay should be vacated” in Murphy’s case. (Notably, Southwick is one of the three judges who heard arguments in that other case, Gutierrez v. Saenz, on Sept. 20.)

Judge James Graves, an Obama appointee, joined Southwick “in not making a ruling on the motion to vacate the stay at this time” in Murphy’s case. Monday’s opinion also noted that Graves will be filing a concurring opinion at a later date. [Update, 9:30 p.m.: Graves has filed his concurring opinion, so the full opinion was reissued as a “modified” opinion. No other changes are apparent in either of the other opinions.]

So, with that majority opinion, the stay of execution remained in place.

This is where Smith, a Reagan appointee, comes into the picture.

Smith was the “1” in the 2-1 decision, and he was not happy with Monday’s events. Now, normally, when a judge loses a case, they write a dissent.

Sure enough, that’s how Smith started. But, it is quickly seen, that is not where he left things.

“[S]hould have been issued.”

Yes, Smith lost the vote, then published a fake majority opinion.

Within that attachment, there is nothing suggesting that it is fake, not law, not a judicial act.

Smith begins the fake majority opinion by naming Southwick and Graves as the other two judges on the panel. Smith concludes the fake majority opinion with a ruling that the court did not make, stating the result as something “we” — the multi-member court — are doing.

Again: This did not happen. It is not an actual ruling.

Again: The actual ruling from the actual majority kept the stay of execution in place. Southwick wrote for the 2-1 court’s majority:

What is going on?

What happened here is likely that, earlier in the consideration of Texas’s request, Smith was writing the majority opinion. But, between then and the issuance of the decision, it became clear to Smith that he did not have majority support for his view.

Whether someone changed their vote or something else happened, majorities shift in court opinions during the drafting process. It happens. The losing judge writes a dissent.

That’s how it goes. Went. Until Monday.

Instead, Smith put out into the world what amounts to little more than his fan-fic majority opinion.

This is not appropriate judicial behavior, and it’s honestly very confusing.

There’s now a document out there, formatted like an opinion of the Fifth Circuit, that is undoubtedly going to be incorrectly cited to and quoted from in the future. (More to come on this.) The “we” language, in particular, given the inclusion of the other judges’ names on the document, is arguably unprofessional. What’s worse, this is in a death penalty case where a man’s life is at stake. Smith inserting unnecessary confusion into the already tense, complex process surrounding executions is truly abhorrent behavior. (And, as others have noted, think what will happen when this gets pulled into legal databases, not to mention AI and ChatGPT systems.)

[Update, 1:30 p.m.: Others have pointed to a January 2022 opinion from Judge Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit as a similar instance. In some ways, it is, but in other important ways, it is different.

In that case, VanDyke, a Trump appointee, had authored the majority opinion in a three-judge panel case addressing gun rights. Suspecting that the full court would not agree with the panel’s more conservative decision, VanDyke authored an extremely sarcastic concurring opinion to his own majority, purporting to offer an “alternative draft opinion” to (again, sarcastically) help the full court “get a jump-start” on the en banc opinion reaching the opposite conclusion in the case.

As can be seen, VanDyke put the “alternative” opinion in block-quote text throughout, making clear that it is an element of his concurrence and not an actual opinion. He also put sarcastic footnotes throughout his “alternative” opinion, again, making it fairly clear that no one should mistake it for an actual opinion.

Ultimately, it feels to me that VanDyke’s move was less collegial than Smith’s move but structurally fitted more within the normal scope of a judicial opinion — which is important and alleviates some, though not all, of the concerns that I raise above about Smith’s move. Also note that as a concurrence to his own majority opinion, VanDyke wasn’t undermining another judge’s majority decision with his antics. Finally, while there are debates about whether appellate judges should be writing concurrences to their own majority opinions, it does happen on occasion, so that element of VanDyke’s move wasn’t completely out of the ordinary.]

Nonetheless, in the death penalty case underlying all of this, the bottom line is that the Fifth Circuit left the stay of execution in Murphy’s case in place while the other case remains pending.

That, however, is not the end of things.

Off to the Supreme Court

Late Monday, Texas went to the U.S. Supreme Court, asking the high court to vacate the district court stay of Jedidiah Murphy’s execution scheduled for Tuesday. The state’s filing focuses on the district court’s ruling granting the stay, touching only in passing on the fact that the Fifth Circuit kept the stay in place — calling it a decision “only compound[ing] the error” of the district court.

[Update, 2:00 p.m.: Lawyers for Murphy have opposed Texas’s Supreme Court request, defending the district court and Fifth Circuit decisions below. “The Fifth Circuit panel engaged in the very same equitable analysis that [Texas] urges; they simply reached a conclusion [Texas] doesn’t like,” the lawyers for Murphy noted at one point.]

[Update, 4:30 p.m.: Texas has filed its reply, so a ruling could come at any time.]

[Update, 5:30 p.m.: In addition to Texas’s application (and the underlying stay of execution that the state is challenging there), Murphy’s lawyers filed a certiorari petition and request for a stay of execution on Tuesday in appeal of a state court decision denying Murphy relief related to a fire that took place on Aug. 25 and exposed the state’s execution drugs to “fire conditions.”]

[Update, 7:45 p.m. ET: The Supreme Court vacated the stay of execution in Jedidiah Murphy’s case, removing any legal impediment from Texas being able to proceed with its scheduled execution of Murphy on Tuesday.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have allowed the stay of execution to remain in place.

The stark move — rejecting two lower court decisions in agreement that the execution should not be allowed to proceed on Tuesday with no explanation of its reasoning — came around 6:30 p.m. ET, 30 minutes before Murphy’s scheduled execution.

Around 7:30 p.m. ET, Texas responded to Murphy’s request for a stay of execution in the fire-related case, opposing his stay request and urging the court to deny the cert petition as well. The responsive pleading, however, does suggest that the state likely will await a ruling on this request before proceeding with the execution.]

[Update, 9:50 p.m.: The Supreme Court denied Murphy’s request for a stay of execution and the associated cert petition.

There were no noted dissents. His execution likely will proceed Tuesday night.]

[Update, 12:01 a.m. Oct. 11: Texas has executed Jedidiah Murphy, per the Associated Press.]

Note: What follows is additional information from the original post about Texas’s initial Monday Supreme Court filing.

When Texas does reference the appeals court, Attorney General Ken Paxton’s office relies heavily on Smith, citing him four times in its 20-page filing at the Supreme Court.

Three of those citations are references to his fake opinion.

Texas does not, however, explain Smith’s fake opinioneering, instead just reframing the fan-fac majority opinion as “(Smith, J., dissenting)” when it quotes from the fake opinion.

Smith himself called it the “Fifth Circuit panel opinion that should have been issued,” not a dissent. It was an attachment to his dissent; it is not his dissent. The language is not written as a dissent; it includes a decision! Texas certainly couldn’t have quoted from that final paragraph that I posted above — declaring what “we” the court are doing in this case — and slapped “(Smith, J., dissenting)” on it.

To be fair to any court being presented with quotes from the fake opinion, the party presenting them should actually explain the context for what the party is quoting. (This is, of course, part of the problem of such a ridiculous move from Smith.)

Truly unreal circumstances, with Smith’s actions resulting in unusual sourcing — if not incorrectly cited sourcing — in a brief from Texas now filed at the U.S. Supreme Court.

All in service of Texas’s efforts — with Smith’s support — to be able to kill Murphy on Tuesday.

This post has been expanded and updated after initial publication. Law Dork will have more on this developing story as circumstances warrant.