In a highly unusual move reflecting exception to a majority ruling, U.S. Circuit Judge Jerry Smith issued what can be termed as a ‘mock majority opinion’ earlier this week. Smith’s intent was to illustrate his disagreement with a decision upheld by the majority to postpone the execution of a convicted murderer in Texas. In his mock-up, the judge labelled his decision as “the Fifth Circuit panel opinion that should have been issued.”
The judge’s alternative opinion was crafted in lieu of a lengthy dissent focusing on the perceived oversights of the panel majority and district court. “The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago,” Judge Smith wrote. He included a false order at the end of the document signalling the panel’s decision to vacate the stay of execution, although the article was tagged as a “dissent attachment.” It was referred to as an “alternative opinion” by the other members of the panel.
Senior lawyer Dylan Drummond from Mayer LLP, who is not party to the case, expressed his opinion on the unusual matter. He stated that the public that our courts aim to communicate with could be puzzled by such an unusual document layout. He also expressed doubts that it might have resulted from a mix-up regarding whether Judge Smith was writing for the majority.
The real court order saw U.S. Circuit Judges Leslie Southwick and James Graves declining Texas’ emergency appeal to vacate a stay of execution for Jedidiah Murphy, who was due for execution. After Murphy’s last-minute motion raised questions to be ruled in another suit, the panel chose not to decide on vacating the stay for now. Murphy was convicted in 2000 of murdering an 80-year-old woman and sentenced to death, in part due to his future dangerousness.
Judge Smith in his mock opinion expressed that “the district court abused its discretion in granting the September motion to stay execution because Murphy has failed to demonstrate that he is likely to succeed on the merits of any claim in the September complaint, and no other equitable factors weigh in his favor.” Following the appeals court’s decision not to vacate the stay, Texas filed an emergency application with the U.S. Supreme Court.
Despite the unusual dissent, Judge Smith’s chambers declined to comment as a matter of policy. Judge Smith, nominated by President Ronald Reagan, has been serving as a federal judge since 1987. Murphy’s case, listed as 23-70005, continues in the U.S. Court of Appeals for the Fifth Circuit.
For more specific details about this compelling case, please refer to the original article.