Capital cases confirm shifting vote patterns on CCA

About a week ago I posed the question, "Is Sharon Keller's influence waning on the Texas Court of Criminal Appeals?," focusing on a couple of recent Fourth Amendment cases in which the Presiding Judge was in the minority. Now via the prosecutors' association user forum I notice a related article from the June 16 San Antonio Express-News ("Death penalty winds shifting on high court") identifying a similar trend in capital cases. The story opened:

Seldom do judges on Texas' top criminal court side with death row inmates, but last month they did so twice.

And last week they did it twice again, this time in decisions issued only a day apart.

Sparing a mother who smothered her infant and delaying the executions of three other convicts, including a San Antonio kidnapper, the rulings aroused speculation that something new might be afoot at the Texas Court of Criminal Appeals.

"The last few weeks have been striking," said Jordan Steiker, co-director of the Capital Punishment Center at the University of Texas School of Law.

The court's willingness to reconsider so many death sentences in such a short span is, some believe, a direct response to the exacting scrutiny and repeated criticisms that the U.S. Supreme Court has aimed at Texas' handling of capital cases.

The high court in recent years has overturned several Texas death penalties and, in the term alone, the justices have ruled in favor of three inmates condemned by the state.

It's heartening to see evidence that an emerging majority has decided to stop butting heads with SCOTUS on capital cases and just follow their rulings instead of looking for any possible avenue (think "We close at 5") to sustain an execution. The minority in those cases - Keller, Hervey, Keasler and Meyers - remain essentially defiant toward US Supreme Court rulings on the death penalty.

Williamson County DA John Bradley was quoted in the story attempting to portray this development as a "liberal" shift:

Others worried that the judges had surrendered to political expediency

"One could wonder if they're now trying to err on the side of more liberal rulings to avoid Supreme Court review," said John Bradley, Williamson County district attorney.

That's an ironic, rather silly, and nearly Orwellian way to characterize these rulings. In John Bradley's world, for a judge to follow US Supreme Court dicta is to "err on the side of more liberal rulings." In reality, for a judge, ruling CONTRARY to US Supreme Court decisions is considered errant, the error being failure to follow precedents laid down by federal appellate courts.

To the extent these rulings resulted because five CCA members are trying to avoid the all-too frequent benchslappings they've endured from SCOTUS, that indicates they're now following the law of the land. By contrast, the four activist members in the minority, given their druthers, prefer to flout Supreme Court rulings in deference to their personal political agendas on capital punishment. Judge Cochran told the Express-News, "I follow the law as the Supreme Court gives it ... And I always try to do that when the Supreme Court speaks, no matter who it favors." That's a refreshing change of pace from the CCA; let's hope it can be sustained.