In several decisions this past week, judges have raised key death penalty questions

The Texas Court of Criminal Appeals and a Louisiana federal judge stopped executions, while the Fifth Circuit tossed out a third death sentence.

It is easy for stories to get lost in this news environment, but it should not get lost in the media rush that multiple courts have issued multiple rulings blocking executions, reversing sentences, or otherwise questioning the death penalty in the past week.

First, Texas did not kill David Wood last night, as it was scheduled to do at the start of the week.

In a pair of cases, the U.S. Court of Appeals for the Fifth Circuit and Texas Court of Criminal Appeals both issued orders on Tuesday, March 11, that threw Wood’s conviction and death sentence that followed a series of murders in Texas that Wood denies involvement in into doubt and put his execution on hold, respectively.

In the course of one day, nine judges — all Republicans or appointed by Republicans — did that.

First, the Fifth Circuit — a panel of Chief Judge Jennifer Walker Elrod (George W. Bush) and Judges Jerry Smith (Reagan) and Kurt Engelhardt (Trump) — authorized Wood to bring a habeas claim to the district court that included explosive allegations that the prosecutors withheld evidence from his lawyers (a Brady claim) and elicited false testimony (a Napue or Giglio claim) at trial.

It is a striking opinion — all the more because of the extremely conservative panel that issued it. Although they reiterate the preliminary, non-merits nature of their decision authorizing Wood to pursue the claims, they also make clear that they were disturbed by them.

In Wood’s trial, the state’s key witness, Judith Kelling, testified that Wood had raped her under circumstances similar to several murders of young women in the area. The Brady claim involved a declaration from a woman, Ramona Dismukes, that Kelling had told her that someone other than Wood had raped her and that she didn’t recognize Wood. Dismukes further said that she told the police about this and they “told [her] to stay away.“

Here’s what the panel of Elrod, Smith, and Engelhardt wrote in their unsigned, per curiam decision:

If Dismukes had testified to the facts she states in her declaration — that Kelling identified [Michael] Plyler as her attacker but falsely framed Wood — that would have destroyed the state’s case so thoroughly that every reasonable juror would have had a reasonable doubt about Wood’s guilt. In a trial that the state described as “purely a circumstantial-evidence case,” Kelling’s testimony was a crucial linchpin.

Although the appeals court didn’t issue a stay of execution, the district court, which will now consider Wood’s claims, could have done so.

That turned out to be unnecessary because, later Tuesday, the Texas Court of Criminal Appeals issued a stay of execution in a state habeas claim brought by Wood. Giving no reasoning, the court, in a 6-2 decision, simply stated Wood’s claims before them and issued the stay:

In all, nine judges sided with Wood over the course of one day.

As a result of that and as the week comes to a close, Wood remains alive.

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Louisiana’s nitrogen gas plans

In another upcoming execution, a federal judge in Louisiana blocked that state “from executing Jessie Hoffman on March 18, 2025, using nitrogen hypoxia.”

Dick noted how quickly Louisiana had moved to become the second state — after Alabama — to kill a person by suffocating them to death by way of nitrogen gas, writing:

Training on the nitrogen system started in November 2024. Obviously, DPSC anticipated the ability to use nitrogen for executions. Yet, despite the leg work that DPSC had already undertaken, Louisiana’s execution protocol, a carbon copy of Alabama’s, was not promulgated until February 7, 2025.

Then, as to Hoffman, she explained:

In addressing Hoffman’s Eighth Amendment claim, U.S. District Judge Shelly Dick, an Obama appointee, wrote:

The Court finds that Dr. Bickler’s thirty years of clinical research, specifically studying hypoxia in humans, results in reliable scientific understanding of the physiological effect of hypoxia in humans. Anecdotal evidence from eyewitnesses to the four Alabama nitrogen hypoxia executions corroborate and reinforce his opinions. The Court finds that Plaintiff has clearly shown that he is substantially likely to prove that nitrogen hypoxia poses a substantial risk of conscious terror and psychological pain.

Of course, as a federal judge in Louisiana, state officials quickly appealed the preliminary injunction to the Fifth Circuit.

Louisiana Attorney General Elizabeth Murrill, a Republican, filed an emergency motion to stay or vacate the district court’s injunction on Wednesday and Hoffman’s lawyers filed their opposition on Thursday.

So, now a second scheduled execution is in front of the Fifth Circuit.

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An overturned Texas conviction

Finally, a week ago, in a third capital case in front of the Fifth Circuit, the panel tossed out the 27-year-old conviction and death sentence of Brittany Marlowe Holberg — in another Brady claim case out of Texas.

Judge Patrick Higginbotham, a Reagan appointee, wrote solemnly about the case in his opinion for the court:

The 86-year-old judge was joined in his opinion by Judge Stephen Higginson, an Obama appointee.

Dissenting was Judge Kyle Duncan, a Trump appointee, who dismissively introduced Holberg in the opening paragraph of his dissenting opinion as “a 23-year-old cocaine-addled prostitute.”

Don’t worry, Higginbothan made short work of Duncan’s nasty work.

First, though, what was the withheld evidence? More from Higginbotham:

Holberg and her lawyers were told none of that.

And the prosecutors kept that information from the jury as well:

All of that meant nothing to Duncan who argued that “Holberg’s self-defense theory was ludicrous” and that “undermining Kirkpatrick couldn’t have made any difference to the outcome.”

In response to Duncan claiming that the withheld evidence was not “material” — a requirement to succeed in claiming a Brady violation — the Reagan appointee wrote:

Our colleague in dissent underestimates the power of an advocate armed with the evidence here illegally withheld and its impact on the trial. That fatality is the driving force of the Brady doctrine itself. We highlight here Glossip v. Oklahoma, the recent decision of the Supreme Court, reversing and remanding the Oklahoma Court of Criminal Appeals’ judgment and ordering a new trial for defendant Richard Glossip. The Court found the jury’s credibility assessment of the prosecution’s star witness “necessarily determinative” and the prosecution’s Napue v. Illinois, 360 U.S. 264 (1959), violation material—even though the jury was aware that the witness in question was untrustworthy.

The majority’s quick reliance on last month’s Glossip decision is notable — and shows the potential importance of the decision in litigating habeas cases that involve Brady or Napue claims going forward.

Across all three cases, the reality of the death penalty in America — with too many trials conducted unconstitutionally and too many states acting to execute with new methods, under secrecy, and/or on quick timelines — is causing judges across the ideological spectrum to look closely at what officials are doing in our name to secure convictions and kill people.

And yet.

Despite all of that, three other states — all outside of the Fifth Circuit — have executions scheduled for next week. Arizona is scheduled to kill Aaron Gunches on March 19. And, on March 20, Oklahoma is scheduled to kill Wendell Grissom and Florida is scheduled to kill Edward Thomas James.