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.

In federal district court, U.S. District Judge John Rainey granted a summary judgment in favor of the state that Jackson did not satisfy the standard for a COA, effectively concluding that reasonable judges could not disagree with the state courtsí application of clearly established federal law. In upholding Judge Rainey’s decision that Jackson is not entitled to a COA on the issue, the 2-1 Fifth Circuit majority decision by Judge Jerry E. Smith reasons that, even though the U.S. Supreme Court has previously ruled that the Constitution requires that a capital jury consider “any aspect of a defendantís character or record . . . that the defendant proffers as a basis for a sentence less than death,” the Supreme Court has not expressly concluded that the Constitution requires a jury to consider death penalty impact statements from friends and family. Thus, the majority narrowly concludes that Jackson cannot show that the state courtsí resolution is contrary to clearly-established federal law and, therefore, Jackson is not entitled to have his appeal considered on the merits.
In a vigorous dissent, Judge James L. Dennis contends that the majority improperly resolved Jacksonís claims at the COA stage and notes that the majority decision is at clear odds with the trend in Supreme Court decisions that broaden procedural safeguards for defendants in death penalty cases:

[T]he Supreme Court has required the liberal admission of mitigating faxtors in death cases that may be relevant to the deathworthiness or ‘culpability’ of defendants, and these holdings conflict with the idea that there are limited categories of admissible evidence in death cases to which evidence can be neatly fitted. [. . .]
If the value of the victim’s life is permitted to be brought before the jury, however, then I see no option under Supreme Court jurisprudence but to permit the defendant to counter this evidence with evidence of the value of his own life.

Despite such apparent logic, the majority rejected Judge Dennis’ reasoning. Moreover, inasmuch as Jackson’s request for a COA should be rejected under Supreme Court guidelines only if reasonable jurists could not disagree over the state courts’ application of federal law on the issue, the clear implication of the Fifth Circuit majority decision is that Judge Dennis is not a reasonable jurist.
My sense is that we have not heard the last word on this case.