The three-judge panel that earlier rejected a stay for Elroy Chester has ordered a new panel to consider his request. The order in Chester v. Thaler is available in Adobe .pdf format.
The basis for the order is the recent ethics complaint filed against Judge Edith Jones, a member of the panel. Another member of the panel is Chief Judge Carl E. Stewart, to whom the complaint was directed; he will decide what happens to the complaint next. Judge Jones dissented. Judge James L. Dennis, the third member of the panel, concurred and wrote seperately to express his opinion that the court should stay the execution in order to provide the new panel with sufficient time to examine the questions.
The Austin Chronicle posts, "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal," by Jordan Smith.
To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.
That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February. In addition to claiming that blacks and Hispanics are more violent than are whites, and that claims of racism and innocence made by death row inmates are mere "red herrings," Jones also opined that the Supreme Court decision that outlawed execution of the intellectually disabled does the disabled a disservice and represents a "slippery slope" in death penalty jurisprudence. Indeed, according to the complaint filed last week, Jones also referred to assertions of mental retardation made by death row inmates as "red herrings," and said that the "manner in which these defendants committed their crimes proved that they were not 'mentally retarded,'" reads the complaint.
During the lecture Jones allegedly singled out Chester's case (among a handful of others) for derision, even though his execution at that time had not yet been carried out, and his case may yet have come back to the Fifth Circuit, and to her, for review. According to an affidavit sworn by death penalty attorney Marc Bookman, who runs the Atlantic Center for Capital Representation, that was filed with the complaint, Jones made "special mention of Elroy Chester," during the February lecture. "She said that Chester claimed to be mentally retarded and had been slow in school but he still managed to go on a burglary spree," reads the affidavit. "In the context of talking about this case and others involving claims of mental retardation, Judge Jones commented that she believes it may do a disservice to the mentally retarded to exempt them from death sentencing."
"Appeals panel rethinks killer’s case after judge’s comments," is the AP filing, via the Austin American-Statesman.
Jones denied the motion Tuesday and dissented in a ruling by a three-judge panel that Chester’s case be reassigned to another three-judge panel of the appeals court. James Dennis, one of the judges on the previous panel that included Jones, said Chester’s scheduled execution should be postponed so the new panel has adequate time to consider the case.
“Chester’s execution, of course, will moot those issues, and any constitutional injury to his rights will be irreparable,” Dennis said in his concurring opinion.
The Houston Chronicle and San Antonio Express-News report, "5th circuit panel agrees to exclude Jones from death penalty appeal," by Lise Olsen.
Two judges on the U.S. 5th Circuit Court of Appeals agreed Tuesday to reassign review of the case of a man facing execution Wednesday to a new panel that would exclude Judge Edith Jones, who is the subject of a formal misconduct complaint.
One of the judges, James Dennis, also supported a stay in the pending execution of convicted killer Elroy Chester, which remains scheduled for 6 p.m.
The new three-judge panel is expected to decide whether to stay Chester's execution.
Earlier coverage of Elroy Chester's case begins at the link.