Wednesday, October 11, 2006

UT Capital Clinic Earns Third Trip in Three Years to Litigate Before Supremes

CrimProf Blog highlights the work of Rob Owen, Jordan Steiker and Jim Marcus of the UT-Austin Capital Punishment Clinic for earning a third opportunity in three years to litigate in front of the US Supreme Court. The case is Smith v. Texas, which Grits blogged about earlier. Congrats to all involved, especially the three lead counsel.

CrimProf blog says the Clinic "will involve students in the difficult task of briefing the case for the Court and preparing for the staggering range of federal and state issues that bear on the resolution of the case." Good for them. What a great learning opportunity for the law students! The UT Capital Punishment Clinic is really quite a program.

Clinic attorneys have done some great lawyering recently, and they deserve tons of credit. But it's also true that the Texas Court of Criminal Appeals has flagrantly and repeatedly flouted the US Supreme Court's death penalty dicta, inviting a series of high-profile bench slappings that have nationally undermined the credibility of Texas jurisprudence.

I'd love to see the Texas Court of Criminal Appeals embrace the concept of stare decisis (making decisions based on higher court precedents), defer on Constitutional matters to the US Supreme Court and give the Capital Punishment Clinic a little less publicity. I'm not holding my breath, though.

3 comments:

Kelly Higgins said...

Stare decisis is not about letting superior court rulings dictate lower court rulings. That is called controlling authority. Stare decisis, which I heard translated as "let the decision stand" is a doctrine of deferrence to past rulings, usually from the same court invoking the doctrine.

That makes it Roe v Wade's most important doctrinal defense against being overturned. Likewise Gideon v Wainwright, and all the other planks of law that we have come to see as normative and civilized.

Kelly Higgins said...

Not to ramble on, but I think what you want is for the CCA to embrace the concept of federalism, under which state courts must defer to the USSC. I recall that Eisenhower enforced this concept pointedly after Brown v Board of Education. It's not just a concept, it's the law.

Gritsforbreakfast said...

Thanks Kelly. If stare decisis is a "doctrine of deferrence to past rulings," the sense I was using it was the failure of the CCA to defer to the USSC's past ruling in Smith - maybe the term is different when we're talking about the same case, not historic precedent.

As always let me give the standard IANAL disclaimer (I am not a lawyer!). Best,