Which court is worse?

(UPDATE: David Elliot punts on which court is worse. An overworked Carrie chimes in via email voting for "CCA all the way," because she suspects their motives are more political. The Washington Post exhibits more or less equal disdain. CCA ahead so far, 2-0-2.)

The New York Times yesterday had two of its top reporters tackle the difficult subject, which are the worse jurists, the Texas Court of Criminal Appeals or the federal Fifth Circuit Court of Appeals? Read the story and judge for yourself.

Both courts were embarrassed recently when the U.S. Supreme Court reversed their decisions on multiple death penalty cases. In one opinion, Justice Sandra Day O'Connor said the Fifth Circuit was "paying lip service to principles" of appellate law and issuing death penalty rulings with "no foundation in the decisions of this court."

Meanwhile, Texas Monthly already declared the Court of Criminal Appeals to be Texas' worst court. Overturning a recent decision, the Supremes announced that the Court of Criminal Appeals "relied on a test we never countenanced and now have unequivocally rejected." The Times noted that "The decision was made without hearing argument, a move that ordinarily signals the error in the decision under review was glaring."

The Times seemed to lean in favor of the Fifth Circuit in regards to which court is worse, but for my money, the Fifth Circuit's overturning Max Soffar's case gives the Texas Court of Criminal Appeals the ignominious edge.

Talk Left noted the Texas court's initiative toward "innocence clinics" at law schools, recently spearheaded by Court of Criminal Appeals Judge Barbara Hervey. Citing the proposed clinics, she boasted to the Times, ironically, "We are in the game of justice." A cynic might note that Hervey and the CCA were silent when state Senator Rodney Ellis wanted to finance innocence clinics through the Legislature in 2003. But now that the court's many disgraces are becoming more public, Hervey wants to make herself the clinics' most prominent spokesperson. Perhaps not coincidentally, Hervey stands for re-election in 2006, and belatedly now would like to portray herself as a sensible, justice-oriented moderate. From Grits' perspective, her efforts come far too little and too late.

CCA Judge Lawrence Meyers said he thought the court's decisions were "evening out," and a law professor who works with Hervey on innocence clinics said the court is "beginning to float back" toward the center. However, the Times noted that just last week the court voted 5-4 against a temporary reprieve for Frances Newton, whose execution Governor Perry later temporarily stayed. Today the U.S. Supreme Court will hear another case, that of Thomas Miller-El, where the CCA's and the Fifth Circuit's decsions will again likely be tossed out.

Via Talk Left and Sentencing Law and Policy

Related item: Speaking of arguments before the Supremes, Skelly points to this story from the L.A. Times about Jeffrey Fisher, a young hotshot attorney who won two major decisions before the Supreme Court in a single term, including Blakely v. Washington, which doesn't affect us here in Texas but is blowing the doors off the sentencing process in some other states. We could use a couple or three like him in Texas.