Although the conflict flies below the radar screen outside legal circles, the Fifth Circuit Court of Appeals and the U.S. Supreme Court have been engaged in a caustic war or words (see articles here and here) over the past several years in regard to death penalty cases emanating from Texas courts. Based on the recent decision in Jackson v. Dretke, 05-70031 (5th Cir., May 30, 2006), it looks as if the Fifth Circuit judges are now getting testy with each other over such cases.
Jackson involves what type of mitigation of punishment evidence is a defendant entitled to propound to the jury during the sentencing phase of a capital murder case. Jackson admitted murdering his wife and two children, but his defense attorney sought to have the jury hear from Jackson’s family and friends who did not want him to be executed. The trial judge denied the defense request and the Texas Court of Criminal Appeals upheld the decision. Jackson’s habeus corpus proceeding in federal court followed, seeking what in death penalty appeal jargon is called a “certificate of appealability” (“COA”) from the state courts’ rejection of Jackson’s request to have the jury hear the testimony of Jackson’s family and friends.

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