Monday, January 22, 2007

5th Circuit Court of Appeals: A rubber stamp, a horse's ass, or just misunderstood?

Since we're on the subject of appellate courts this morning, I should mention two good recent posts about the US 5th Circuit Court of Appeals from Robert Loblaw at Decision of the Day. (The court handles appeals from federal district courts in Texas, Louisiana and Mississippi.) First, he questioned whether the Fifth Circuit's reputation as a prosecutor's rubber stamp may stem from its tendency not to publish anti-prosecution opinions? Loblaw wrote:
The Fifth Circuit tends to have a bad rap here and elsewhere when it comes to affirming criminal convictions and sentences. Could this reputation be due in part to a tendency to relegate its reversals to the dustbin of unpublished opinions? One of these unpublished pro-defendant decisions - not the first I’ve seen in recent weeks - came on Friday, as the Court reversed a drug dealer’s conviction on Confrontation Clause grounds. On appeal, the government had conceded that the testimony at issue violated the defendant’s Sixth Amendment rights, but argued that the error was harmless. The panel disagrees with the latter proposition, explaining that it cannot conclude that the admission of the offensive statements was harmless beyond a reasonable doubt. The panel even cites the Ninth Circuit for its harmless error analysis. No wonder the decision is not published.
Certainly this blog is one of the "elsewhere's" where the 5th Circuit has a bad rap. Maybe some attorney can explain it to me, but I don't see why the court wouldn't issue written opinions on EVERY reversal - otherwise how can lower courts know what they've been doing wrong and change their practices? Who knows, maybe the Fifth Circuit would look more reasonable if we saw more of their opinions.

Loblaw had equally good commentary on another Fifth Circuit case in the papers today: The 5th reversed a lower court ruling which itself had overturned a Texas state law banning the slaughter of horses for human consumption. (Two Texas plants slaughter horses for foreign consumption, said the AP.) Wrote Loblaw:
Judge Benavides’ opinion wins my vote for best opening line of the month: "The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality." In a footnote, he adds that "thieves would occasionally eat the cowboys' horses."
I have no idea what I think of the opinion, or whether I care about foreigners eating Texas horsemeat. But you've gotta agree with Loblaw that Benavides' at least put some thought into that opening line. (For the record: AP quoted Charlie Stenholm, who oughtta know what he's talking about, declaring "Those who want these plants to shut down should be careful what they wish for ... If these plants shut down tomorrow, the nation's patchwork of horse rescue facilities would be overwhelmed. They can barely manage to care for the approximately 6,000 horses already in the system.")

Following the lead of the good folks at Above the Law, I questioned earlier who might fill the two vacant Texas positions on the 5th Circuit, and got a slew of interesting reader responses. I need to go through that information and follow up at some point, but it's worth mentioning that one of the names floated in that post, Texas Solicitor General Ted Cruz was the metaphorical thumb on the nose of the Texas Court of Criminal Appeals who just argued the case for "harmless error" in Smith v. Texas.

Please let me know, gentle commenters, whenever you've got any more gossip on possible 5th Circuit appointments.


Gritsforbreakfast said...


Don't give them any ideas! ;)

Anonymous said...

Take a look at the 1st and 14th CCA. You want to see a rubber stamp, that is a rubber stamp. Especially the 1st CCA. If the Judge refuses to sign a case for an appeal, they just rubber stamp the case and deny it or dismiss it. All of the Judges who sit on this court are from Houston, with the exception of two, Barbara Parker Hervery and she has been in Houston so long she is now a Houstonian. Then look at Sharon Keller, she is from Dallas but the same story as Ms Parker Hervey. These courts need to be entirely cleaned out and some fairness given to those who were denied their right to appeal because of the mean female judges in Houston refused to sign the papers and refused to listen to the appeal. Something has to be done to our court system to make it fair again and let's start with the judges!!

Anonymous said...

" . . . I don't see why the court wouldn't issue written opinions on EVERY reversal - otherwise how can lower courts know what they've been doing wrong and change their practices?"

There's a difference between writing an opinion and publishing an opinion.

The court almost always writes an opinion. It might be very short in an affirmance -- maybe just "We agree with the reasoning of the court below, and adopt its order as our opinion." Opinions are typically longer in reversals because they need the court below to know what it did wrong so it will not repeat its mistake.

"Publishing" is different. It might not mean what you think it means. Even "unpublished" opinions are freely accessible. Whether published or unpublished, written opinions are available online and (sometimes) in a supplemental reporter put out by West publishing. The 5th Circuit also has a feed so you can get every single opinion e-mailed to you as it is released to the public.

"Publish" instead is a term of art that designates whether an opinion can be cited as authority in other cases. It's controversial and, in my opinion, counter-intuitive, to say the least. There's no rhyme or reason to which opinion get "published," except that, in the judgment of the opinion's author, it covers new ground or important principles.

Gritsforbreakfast said...

Thanks Contrarian, I actually get that. And maybe my desire for published opinions on all of them is too much.

My thought is this: When the appellate court has ruled the state did something wrong, isn't that where we NEED to be establishing hard precedents instead of leaving those cases without the same authority as the 5th Circuit's more commonly published prosecutorial affirmations?

It seems to me like that's where precedent becomes most important, when the state is engaging in behavor they shouldn't be doing. But I'm sure you're right that ALL would be impractical and unnecessary. A few more would be nice, though! Best,