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"Judges of Death"

[Col. Writ. 12/14/04] Copyright 2004 Mumia Abu-Jamal

As the nation ponders the fate of a young
California man being sentenced to death, the case of
another man, one lesser-known, one without wealth
or whiteness, comes back before the nation's highest
court, after having been shunted through a series of
killing courts in Texas.

Thomas Miller-El, 53, was just before the U.S.
Supreme Court about 2 years ago, when 8 of the 9
justices determined that the "Court of Appeals erred
in denying a certificate of appealability" (COA) on
Miller-El's claim of racial discrimination in his jury

Back before the Texas state and federal courts,
Miller-El expected them to respect the decision
of the U.S. Supreme Court. But, as the saying
goes, he 'had another think coming.' Both the
Texas Court of Criminal Appeals (sort of a
Texas Supreme Court for criminal cases), and
the 5th Circuit U.S. Court of Appeals, promptly
denied Miller-El's claims, by virtually ignoring
what the majority of the Supreme Court said,
and glomming onto what was written by the
lone dissenter in the case, Associate Justice
Clarence Thomas, to support their denials.

In legal circles, this is almost unheard of.
One former chief judge, John J. Gibbons,
who sat on the 3rd Circuit Court of Appeals
(in Philadelphia), said, "The idea that the system
can tolerate open defiance by an inferior court
just cannot stand" (*The New York Times*,

We shall see.

A dissenting opinion, in legal opinions, have
some, if limited value. They demonstrate
that courts were split on various issues. They
speak down through the pages of history of
errors made by the present court, that will
hopefully be seen later. But, in a strictly legal
sense, they mean nothing. It is a fundamental
legal principle that majority opinions carry the
deciding weight of which way cases are
decided. Dissenting opinions have,
comparatively speaking, no weight.

So, if that is so, why did a majority of the
Texas Criminal Court of Appeals, and the 5th
Circuit Court of Appeals, essentially ignore
the determination of the majority opinion, and
deign to abide by the dissenting opinion? Why
would learned, experienced judges dare do such
a thing?

The answer (or at least part of it) may lie in
the fact that 80% of the Texas appellate court are
composed of ex-prosecutors, who have learned,
from their former jobs, to give short shrift to
arguments by defendants. Many of them
probably worked their way up onto the bench
by doing the very things that the Supreme Court
has criticized, so they simply don't want to agree
that their own professional actions (like striking
Blacks off juries) were unconstitutional. But,
what of the 5th Circuit, where federal judges,
not state judges, hold sway?

The answer may lie, not in the law, but in
the realm of politics. For judges, though they
wear black robes, are yet political creatures. Even
in the federal system, they are appointed by, and in,
the political system. Senators submit them, and
presidents nominate them. And how do they
come to the attention of national political figures?
By demonstrating their 'conservative' credentials.
Judges, in the Miller-El case, dared to violate
fundamental rules of judicial procedure because
they were *auditioning* for higher seats in the
judicial hierarchy. Mr. Miller-El was nothing
more than a Black, living stepping stone of the
Stairway of Ambition.

Moreover, Texas is infamous for its taste for
death, as amply demonstrated by the bloody reign
of George W. Bush, who presided over the
executions of over 150 men, and several women.
While Texas Governor, Bush undoubtedly appointed
at least some of the judges to the state's appeals
court, and surely (as president) looked kindly to
those nominations to the 5th Circuit federal
bench of jurists who shared his penchant for
cutting judicial corners when it came to the death

It is only in that fractured, political light that
their actions begin to make sense.

Another saying: "Law is but politics, by
other means.'

Copyright 2004 Mumia Abu-Jamal

Copyright 2004 Mumia Abu-Jamal

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Submitted by: Sis. Marpessa

Text © copyright 2003 by Mumia Abu-Jamal.
All rights reserved.
Reprinted by permission of the author.