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Houston Chronicle - "The essence of judicial temperament"

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Location: Houston, TX

Houston Chronicle - "The essence of judicial temperament"
by Rick Casey

IT was the kind of notice that makes you feel special to be a Texan.

A couple of months ago, the Washington Post, the Los Angeles Times and a few other publications ran stories on an interesting dynamic.

A few senators and representatives were pushing on the fast track a bill that would limit the powers of federal courts to reverse state convictions in death-penalty and other major cases.

In an editorial, the Post argued that the bill "would be an unmitigated disaster."

The Post and other publications noted that opposition to the bill came from a seemingly unlikely source: The Conference of Chief Justices.

This is an organization of heads of state appeals courts, as well as some federal appeals courts. You would think that state judges would appreciate a law that would curtail the power of federal judges to second-guess them.

But instead, the state judges approved a resolution arguing that "the changes in these measures may preclude state defendants in both capital and non-capital matters from seeking habeas corpus relief in the federal courts, and may deprive the federal courts of jurisdiction in the vast majority of these matters, all with unknown consequences for the state courts and for the administration of justice."

‘Death-happy Texas'

The chief justices argued that changes made in a 1996 bill that sought to lead to speedier executions were just being fully implemented after years of litigation, and the results should be studied before further changes were made.

Several papers noted that the resolution was passed with only one dissenting vote. In the words of the Post, that dissent came from "the chief justice of death-happy Texas."

I naturally assumed the "nay" vote came from Sharon Keller, presiding judge of the Court of Criminal Appeals.

Texas is one of only two states that have two supreme courts, one for civil cases and one for criminal cases.

As head of the latter, Keller has earned a reputation for lack of sympathy for defense arguments. She's the one who famously, when DNA tests showed the semen in a dead victim was not that of the long-imprisoned appellant, argued that he might have been wearing a condom. (Later, other evidence surfaced that clearly cleared the man.)

To my surprise, the "nay" vote turned out to be that of Wallace Jefferson, chief justice of the Texas Supreme Court.

Jefferson is a fascinating figure. The great-great-great-grandson of a slave owned by a Texas district judge, he was appointed to the Supreme Court by Gov. Rick Perry in 2001 and as chief justice last year.

He had not served as a judge, but he had earned a reputation in San Antonio as both a gentleman and a very astute appeals specialist. His firm generally represented defendant companies on appeal, putting them in the conservative camp. He had twice won cases at the U.S. Supreme Court.

‘We may be at odds'

I asked Jefferson about his "nay" vote, and he explained that he was given a copy of the resolution the day before the vote. He said as a longtime civil lawyer serving on a court that dealt only with civil matters, he did not know the issues and intricacies of criminal appeals law well enough to vote on the matter.

He said he wanted to study the matter before taking a position. He already had talked to Presiding Judge Keller and was preparing to look at "mounds of testimony."

Shouldn't he let Keller determine Texas's position at the national conference, since her court deals with criminal matters?

"No, I think I've got an obligation to decide since I have the vote," he said. "I certainly have consulted with Judge Keller. Her position and mine may be at odds."

A few weeks ago, Jefferson put his conclusions in a letter to the Conference.

"It is an unfortunate fact that some people are wrongfully convicted," he wrote. "Resources for indigent defense are scarce and, while Texas has made great strides in providing counsel in criminal cases, work still remains to be done."

He said the proposed law could "create unreasonable obstacles" through "a stringent system of forfeitures of federal constitutional claims."

The opinion of state chief justices is now unanimous.

But though Jefferson's stance is now in the mainstream, his style is exemplary. He refused to be stampeded. He did not act out of a political orientation. He studied the facts and the arguments, and he came to a conclusion.

That is the essence of judicial temperament.

A final footnote: The U.S. Senate held hearings last week on the proposed bill. Texas Sen. John Cornyn accused some opponents of trying to "undermine" the death penalty.

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