Some Asshole Signing Fifth Circuit's Name To Stupid Opinions

If you can't get a majority to vote with you, just forge their names, right?

The Fifth Circuit is an outpost of extremism and lawlessness.

This is hardly breaking news after the abortion, mifepristone, social media, and trans-bashing decisions we’ve seen out of the appellate court covering Texas, Mississippi, and Louisiana. But there is no better indicator of the ways in which Senator Mitch McConnell and Donald Trump broke the federal judiciary than the Fifth Circuit.

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Even senior jurists who bloody well know better are showing that they no longer give a rat’s ass about judicial norms or civil behavior. They want their radical extremism, and they want it NOW!

To wit, Judge Jerry E. Smith, a Reagan appointee who has been on the bench since 1987, is now writing fake opinions with his colleagues’ names on them, and substituting them for his real dissent. Dubbed a “fan-fic majority opinion” by legal journalist Chris Geidner, who flagged the opinion, the judge’s ruling shows yet again that the Fifth Circuit is wilding out in ways that threaten to damage the entire country.

And did we mention that Judge Smith is using a death penalty case to engage in these shenanigans?

Yeah.

In 2000, Jedediah Murphy carjacked and murdered 80-year-old Bertie Lee Cunningham. The following year, a jury sentenced him to death, based in part on the testimony of another woman who claimed she had also been carjacked by Murphy, although that crime was never charged. Murphy claimed to have DNA evidence which would prove his innocence in the un-charged carjacking, but Texas refused to test it on the theory that they’re only obligated to examine samples relating to the charged crime — not the sentence.

The issue here is that there’s a pending case at the Fifth Circuit on just this topic, which is why the trial court stayed Murphy’s scheduled execution pending the resolution of that case, which is captioned Gutierrez v. Saenz. Indeed Judge Leslie Southwick, a George W. Bush appointee, sat on the panel which heard oral arguments in Gutierrez last month, and he authored the real ruling in the Murphy case, upholding the lower court’s stay pending the resolution of the analogous case.

But his colleague Judge Smith didn’t like that, so he put this little shitpost on the Fifth Circuit’s docket:

The majority opinion is grave error.

It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago. In the interest of time, instead of penning a long dissent pointing to the panel majority’s and district court’s myriad mistakes, I attach the Fifth Circuit panel opinion that should have been issued.

I respectfully dissent.

The word “respectfully” is doing A LOT of work there.

What follows is fake order in the names of Judges Smith, Southwick, and James Graves Jr., an Obama appointee, instructing Texas to get on with the “lawful and important” business of strapping Murphy to a gurney and injecting lethal poison into his veins.

Geidner makes a convincing case that Jones drafted the opinion believing that it would be the ruling of the majority, but then lost support for it, and then posted it on the docket as a big middle finger to his colleagues. Whatever reason, it’s a gross breach of norms, and yet another harbinger of the Fifth Circuit coming unmoored from the judicial practices which have preserved the court as a trusted, non-partisan body.

Just as US District Judges Matthew Kacsmaryk and Terry Doughty have rejected stare decisis and standing as they wield their gavels as a weapon in the culture war, US Circuit Judge Smith refuses to accept that, on a three-judge panel, two judges constitute a majority.

And speaking of lawless, the United States Supreme Court’s six conservatives vacated the stay of execution and let Texas execute Murphy last night. Because we are a bloodthirsty, violent nation, afflicted by jurists who have the power now, and intend to use it.

[Law Dork / Murphy v. Nasser 5th Circuit Docket via Court Listener]

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