Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal

Judge Edith Jones

The chief judge of the 5th U.S. Circuit Court of Appeals this afternoon ordered a new three-judge panel of the court to be assigned to review the case of Texas death row inmate Elroy Chester who argues that comments made by Judge Edith Jones, detailed in a complaint filed last week with the court, indicate she cannot fairly rule in his case.

Whether Chester will be executed as planned, tomorrow night, June 12, is now in limbo.

Chester was sentenced to die for the 1998 death of a well-liked Port Arthur fireman who he killed as part of a months-long crime wave. There is no doubt Chester is guilty of the crime, but there remains doubt about whether he is mentally retarded. If so he would be barred from execution under a 2002 U.S. Supreme Court ruling that the practice violates the constitutional ban on cruel and unusual punishment.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February. In addition to claiming that blacks and Hispanics are more violent than are whites, and that claims of racism and innocence made by death row inmates are mere "red herrings," Jones also opined that the Supreme Court decision that outlawed execution of the intellectually disabled does the disabled a disservice and represents a "slippery slope" in death penalty jurisprudence. Indeed, according to the complaint filed last week, Jones also referred to assertions of mental retardation made by death row inmates as "red herrings," and said that the "manner in which these defendants committed their crimes proved that they were not 'mentally retarded,'" reads the complaint.

During the lecture Jones allegedly singled out Chester's case (among a handful of others) for derision, even though his execution at that time had not yet been carried out, and his case may yet have come back to the Fifth Circuit, and to her, for review. According to an affidavit sworn by death penalty attorney Marc Bookman, who runs the Atlantic Center for Capital Representation, that was filed with the complaint, Jones made "special mention of Elroy Chester," during the February lecture. "She said that Chester claimed to be mentally retarded and had been slow in school but he still managed to go on a burglary spree," reads the affidavit. "In the context of talking about this case and others involving claims of mental retardation, Judge Jones commented that she believes it may do a disservice to the mentally retarded to exempt them from death sentencing."

In response to the complaint, filed June 4, Chester's attorney, Alaska-based Susan Orlansky filed a motion with the Fifth Circuit to stay Chester's execution and to have a new three-judge panel review his previous appeal to the court – or, in the alternative, to have his execution stayed until the investigation into the complaint about Jones' behavior could be resolved. "The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case."

Tuesday afternoon, Chief Judge Stewart agreed that a new panel should be constituted, but declined to stay tomorrow's execution – leaving three newly-assigned judges a little more than 24 hours to decide whether Chester's previous appeal should be revisited.

In determining that a new panel should be appointed, Stewart noted not only that Jones was subject to a misconduct complaint that raises "questions about the impartiality of the judge as respects petitioners like [Chester] and his underlying claims," Stewart wrote also that his duty to review that complaint gives him a "substantial role" in considering whether it should go forward. The third member of the panel, Judge James Dennis, is also placed an an odd conflicting position because the complaint against Jones also raises an issue about her as it pertains to an ugly episode during a 2011 oral argument during which she slams her hand on a desk and tells Dennis to "shut up" as he is questioning a lawyer about the case at bar. (You can hear the exchange at this link, at the 47:30 mark.) "Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote today, though he declined to issue a stay of tomorrow night's slated execution, which would make Chester the 499th inmate put to death in Texas since reinstatement of the death penalty.

In a separate opinion, Dennis concurred with Stewart's decision to move the case to three different judges, but opined that the court should also stay the execution "in order to give the new panel adequate time to consider whether to recall the mandate and take further action in this case," he wrote. "If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled," he continued. "Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable."