Texas trial Judge Trey Loftin is running for reelection. He’s also currently hearing a case in which he’s handed down some rulings favoring a drilling company. And he wants you to know that his decisions favoring this corporation are why you should vote for him:

A Texas state judge is promoting his recent decisions favoring a gas driller in its dispute with a local landowner as part of his election campaign, a move some legal scholars say may violate state judicial ethics rules.

With aspects of the case still pending in his courtroom, Judge Trey Loftin sent fliers to voters saying he forced the U.S. Environmental Protection Agency to back down.

Loftin, who is campaigning to keep his state judgeship in a county west of Dallas, also sent out materials with the image of talk show host Rush Limbaugh, who credited the judge’s ruling in favor of driller Range Resources Corp. (RRC) (RRC), based in Fort Worth, Texas, for getting the EPA to reverse course.

The clear implication of his campaign fliers, of course, is that a vote for Judge Loftin is a vote for the very same kind of industry-friendly, Limbaugh-approved decisions he’s handed down in the past. Rather than, say, future decisions that side with big business only when the law favors big business and with local landowners when the law is on their side.

Worse, by making a case that is still pending in his courtroom a centerpiece of his campaign, Loftin might as well advertise that voters (and industry donors) can influence the outcome of that very case simply by supporting his campaign. This kind of campaign would be inappropriate even if Loftin were simply suggesting that he would rule against a frivolous lawsuit claiming that every Texan has a fundamental right to an unlimited supply of purple plastic plates, but it is all the more troubling when he implies that a wealthy and powerful industry group could keep a friendly judge on the bench by throwing their support behind him.

Last year, Texas Gov. Rick Perry (R) admitted that he “never struggled . . . at all” with whether someone his state executed might have been innocent. Yet a new book written by Columbia Law Professor James Liebman shows that Carlos DeLuna, executed by Texas in 1989, was innocent. According to Liebman, DeLuna was wrongfully convicted and executed for the murder of Wanda Lopez following a botched investigation. DeLuna and the man believed to have committed the murder, Carlos Hernandez, looked so much alike that they were mistaken for each other in photographs by family members. However, DeLuna, who was clean-shaven and wearing a white shirt, did not fit the description of the eyewitness who said that the murderer was wearing flannel and had a mustache. Police arrested DeLuna anyway and failed to do a formal lineup. Police also failed to formally examine the crime scene, ignoring foot and fingerprints, not taking blood samples, and allowing the scene to be cleaned by gas station employees.

Not only did DeLuna maintain his innocence throughout the investigation and his subsequent incarceration, he told investigators that he knew Hernandez had committed the crime. DeLuna was ignored, and during his trial prosecutors ridiculed his claim:

They told the jury that police had looked for a “Carlos Hernandez” after his name had been passed to them by DeLuna’s lawyers, without success. They had concluded that Hernandez was a fabrication, a “phantom” who simply did not exist. The chief prosecutor said in summing up that Hernandez was a “figment of DeLuna’s imagination”. …

By the end of [a] single day the investigator had uncovered evidence that had eluded scores of Texan police officers, prosecutors, defense lawyers and judges over the six years between DeLuna’s arrest and execution. Carlos Hernandez did indeed exist.[…]

Hernandez had a criminal background that included several violent assaults. He eventually died in prison after attacking his girlfriend with a knife.

DeLuna is not the only man to be wrongfully convicted and executed by the state of Texas. There is persuasive evidence that Cameron Todd Willingham, convicted in the death of his three daughters and executed in 2004, was innocent and DNA tests have undermined the evidence used to convict and execute Claude Jones. Texas continues to lead the nation in executions, accounting for over one-third of US executions since 1976, despite the fact that there were 41 DNA exonerations there from 2002-2011.

Moreover, DeLuna’s case highlights the difficulties inherent in the permanence of the death penalty — despite conservative efforts to dismiss these difficulties. Supreme Court Justice Antonin Scalia said in 2005 that there was not “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.” It’s now hard to doubt that’s not true.

–Alex Brown

Even before President Obama took office, the Affordable Care Act’s opponents touted tort reform as a central prong of their health care policy. Texas Gov. Rick Perry even claims that Texas added 23,000 new doctors thanks to a tort reform law he signed in 2003. A new academic study shows that the data simply does not back up this claim, however. According to the study, there is no evidence that tort reform attracted more doctors to Texas:

The bottom line: Our original findings remain correct. There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally. This ‘non-result’ is broadly consistent with other studies, most of which find that state-level tort reform has a modest impact on physician supply. It also offers a counterpoint to these studies, by demonstrating that the small average effects found in other studies will not reliably appear in any given state, even one which undergoes especially dramatic reform.

Indeed, the paper finds that Texans’ access to primary care physicians actually declined slightly after Rick Perry’s tort reform became law, and that the number of primary care physicians per capita in Texas is significantly lower than in the United States as a whole:

Last month, Republican Fifth Circuit Judge Jerry Smith pitched a tantrum in open court, demanding that the Department of Justice respond to some imprecise political rhetoric by President Obama in an attempt to embarrass the president. Today, the staunch Republican judge raised further doubt about his ability to separate politics from the law by suspending a decision benefiting Planned Parenthood just hours after it was handed down by another judge.

Yesterday afternoon, a federal trial court in Texas granted a preliminary injunction preventing the state from cutting off women’s health funds to Planned Parenthood. The trial court’s opinion was written by Judge Lee Yeakel — a George W. Bush appointee — and it is 24 pages long, including substantial analysis of difficult constitutional doctrines such as the scope of the First Amendment right to free speech and the “unconstitutional conditions” doctrine. Significantly, the Bush-appointed trial judge was concerned that Texas stripped funds from Planned Parenthood because it disapproved of the organization’s advocacy in favor of women’s health — a direct attack on Planned Parenthood’s First Amendment rights if Yeakel is correct.

This morning, less than 24 hours after Yeakel handed down his decision, Judge Smith handed down a two sentence decision of his own:

IT IS ORDERED that appellant’s motion for stay pending appeal is GRANTED pending further order of this court. This order is entered by a single judge pursuant to FED. R. APP. P. 8(a)(2)(D).

Several things are significant about this very brief order. First, Judge Smith is a court of appeals judge, and it is very rare for an appeals judge to act alone in this way. Federal appeals courts almost always act as three judge panels, and for very good reason. Judge Yeakel is no less a federal judge than Judge Smith, and he is no less competent that Smith to interpret the Constitution. A court of appeals’ legitimacy generally flows from the fact that it brings more minds to a legal question than a trial court — but this cannot happen when a single judge acts alone.

It is true, as Judge Smith notes, that the Federal Rules of Appellate Procedure permit a single judge to stay a lower court’s decision, but that rule only permits the judge to do so in “an exceptional case in which time requirements make that procedure impracticable.” It’s not at all clear what kind of exceptional time constraints justified allowing Judge Smith to act alone here rather than first consulting with two of his colleagues before issuing this unusual order.

More importantly, it’s unlikely that Smith gave his order much thought at all before handing it down. Judge Yeakel handed down his order weeks after this case was filed, and he produced a 24 page explanation of why it was justified. Smith spent, at most, a few hours — and he offered no explanation whatsoever.

If nothing else, today’s order highlights the foolishness of Smith’s partisan tantrum several weeks ago. Unusual orders — even unusual orders handed down by single judges — are sometimes justified even if the legal reasoning behind such an order is not immediately apparent. Nevertheless, the legitimacy of such orders flows from the public’s trust that they are motivated by obedience to the law and not by partisanship, ideology or personal grievances. Judge Smith thumbed his nose at that trust when he lashed out at Obama last month, and undermined the legitimacy of the entire judiciary in the process.

The Economist maps out every American execution since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases after effectively suspending all executions nationwide for four years. Over one-third of all executions during this period took place in Texas, for a total of 481 people killed by that state. Of the remaining, non-Texas executions, the overwhelming majority are clustered in a small group of southern states:

It’s worth noting that, although the death penalty is still technically legal in most states, actual executions are very rare in most of the country — even after a person has been sentenced to death row. According to a 2011 study by the Death Penalty Information Center, thirty-two U.S. jurisdictions executed no one in the previous five years and more than half of those jurisdictions executed no one after the Supreme Court permitted executions to continue in 1976. Only 12 states executed someone in 2010, and only 7 states executed more than one person.

The increasing rarity of the death penalty in most of the country not only reflects America’s evolution away from inhumane and irreversible criminal justice policy, it also has constitutional implications. The Constitution forbids “cruel and unusual punishments,” and the death penalty is increasingly unusual in the overwhelming majority of the nation. At the very least, Texas’ status as the outlier jurisdiction suggests that an Eighth Amendment solution may be necessary.