If this recent death-penalty panel decision is any indication, 5th Circuit Chief Judge Carl Stewart is taking very seriously a June 4 complaint alleging "racial bias" against his 5th Circuit colleague Judge Edith Jones.
On June 11, Stewart wrote a 2-1 unpublished decision reassigning a last-minute appeal from a panel comprised of himself, Jones and Judge James Dennis to a new panel of 5th Circuit Judges W. Eugene Davis, Edith Brown Clement and Stephen Higginson.
Chester’s hopes of staying his execution, scheduled for June 12 at 6 p.m., were dashed when the new panel denied his execution stay the morning of June 12.
Stewart explained the reason for the transfer in his June 11 decision in Elroy Chester v. Rick Thaler, Director, Texas Department of Criminal Justice: "The third member of this panel is the Chief Circuit Judge, whose duties under 28 U.S.C. §§ 351 et seq. give him a substantial role in the consideration of any complaint of judicial misconduct, including this one." Stewart noted that Chester had attached a copy of the complaint of judicial misconduct filed against one of the members of the panel.
"Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote. "This conclusion is based on the connections between all three members of the panel and the complaint of judicial misconduct; no inferences should be drawn about the merits of that complaint."
Jones dissented to the decision.
Dennis concurred in the decision but wrote separately to express his view that Chester’s execution should be stayed to give a new panel adequate time to consider further action in his case.
The June 4 complaint, filed by a collection of civil rights groups, legal ethics experts and law school professors, arises primarily from a lecture Jones gave on Feb. 20 at the University of Pennsylvania School of Law titled "Federal Death Penalty Review." The complaint also mentions an incident between Jones and Dennis, alleging that she "demonstrated extreme disrespect" during oral argument by asking Dennis if he "wanted to leave" the courtroom and saying she wanted him to "shut up."
Stewart, in his role as chief judge of the court, is tasked with deciding whether or not the complaint filed against Jones should be dismissed or referred to a special committee for further investigation, according to the 5th Circuit’s Rules of Judicial Conduct and Judicial-Disability.
Susan Orlansky, an Anchorage, Alaska, solo who represents Chester, did not immediately return a call seeking comment. Tom Kelley, a spokesman for the Texas AG’s Office, declines comment about the case.