An editorial comment from the Houston Chronicle (Chron.com) highlights concerns raised when an appellate court takes a vote before hearing from the lawyers in a capital case. The reason I link to it here is two-fold: First, it has its timing around the Kentucky lethal injection case which was about to be decided at the time; and more importantly and secondly, a public perception created when the appellate judges cast votes (be they straw votes, etc) before even hearing from the lawyers!
The reason the second also hits home is the reported practice the the Court of Appeals of Kentucky panels keep up with their dockets by having draft opinions prepared prior to oral arguments in some cases (which presumes a tentative vote of some kind). Of course, by reviewing the briefs the COA does hear from the lawyers before leaning in one direction of the other (if this practice does exist).
COMMENTARYHigh court’s secret and hasty vote
By RICK CASEY
Vince Leibowitz, a reporter for a blog called Capitol Annex, reported this week that several judges on the state’s highest court for criminal matters want their chief judge, Sharon Keller, to resign.
Keller has been charged by the State Commission on Judicial Conduct with violations of the judicial conduct code in connection with her alleged refusal to keep the court clerk’s office open for a last-minute appeal for a death row inmate, or to inform the judge assigned to take last-minute appeals that the inmate’s lawyers were attempting to file one.
Now Keller must face the equivalent of a public trial and could lose her office.
Leibowitz quotes his source as saying the judges, at least some of whom would have to testify, feared more media scrutiny could hurt their re-election chances.
Their concern is justified. A good portion of the public might be alarmed to know, for example, that the judges acted a bit like the Queen of Hearts in Alice in Wonderland.
“Let the jury consider their verdict,” the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first — verdict afterwards.”
Life rarely imitates art exactly. As usual, it was a little more complicated.
Convicted murderer Michael Wayne Richard was set to be executed by lethal injection at 6 p.m. Sept. 25, 2007. That morning the U.S. Supreme Court accepted a case called Baze v. Rees challenging the constitutionality of lethal injection.
According to the formal charges by the Commission on Judicial Conduct, Judge Cathy Cochran at 11:29 a.m. e-mailed to Keller and her other colleagues an Internet link to the Kentucky Supreme Court decision that was being appealed to the U.S. Supreme Court.
The document then says that in “early afternoon” the court’s general counsel, Edward Marty, “began drafting a proposed order for the court in anticipation of Mr. Richard’s appeal based on Baze. The Honorable Judge Tom Price drafted a dissenting opinion in anticipation of Mr. Richard’s appeal and circulated the dissent to the other judges.”
What the document omits is that the judges first took an informal vote. I have it on good authority that the tally was 5-4 to turn down Richard’s appeal.
They made up their minds without waiting for the arguments of Richard’s lawyers.
David Dow, the University of Houston Law Center lawyer who headed Richard’s defense team, called the procedure “outrageous.”
“It’s the equivalent of them sticking their fingers in their ears,” he said. The judges may well have felt confident they could anticipate the arguments, and they didn’t want to wait until late in the day to begin taking up the matter.
