Appellate Circuit

Judge, You Can’t Rely Upon Dr. Death and Bias About Pro Se’s Rules Fifth Circuit

Bias; The individual and extrajudicial knowledge on the part of the judge will not dispense with proof of facts not judicially cognizable.

Wood v. Stephens, 540 F. App’x 422 (5th Cir. 2013)

OCT 4, 2013 | REPUBLISHED BY LIT: AUG 10, 2021

Wood has sufficiently demonstrated that reasonable jurists may disagree with regard to whether he was denied a fair hearing as a result of the district court’s improper reliance upon its own experience with pro se litigants…

DENNIS, JAMES L.

SOUTHWICK, LESLIE H.

HIGGINBOTHAM, PATRICK E.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:01-CV-423

Before HIGGINBOTHAM, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM:

Jeffery Lee Wood has filed a motion for a certificate of appealability (COA) to appeal the district court’s denial of a 28 U.S.C. § 2254 application, which asserts that Wood is incompetent to be executed, and that his execution would violate the Eighth and Fourteenth Amendments pursuant to Panetti v. Quarterman, 551 U.S. 930 (2007) and Ford v. Wainwright, 477 U.S. 399 (1986).

The district court denied Wood’s application and denied a COA, finding that Wood suffered from an antisocial personality disorder, but not from a delusional disorder, and therefore does not qualify as incompetent for execution under Panetti.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Wood’s motion for a COA challenges the district court’s conclusion that he did not suffer from a delusional disorder. Wood also asserts that he was denied a fair hearing in violation of the Fourteenth Amendment’s due process clause because the district court erroneously based its credibility and factual findings upon the court’s personal experience with Texas’ death row inmates.

Wood contends that as a consequence, he was precluded from adversarially testing the evidence that the judge relied upon and thus a remand and reassignment is warranted.

Additionally, Wood maintains that the district court prejudged his claim and retaliated against him by unsealing pleadings and proceedings.

To obtain a COA, a prisoner must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

If a district court has rejected a prisoner’s constitutional claim on the merits, this court will issue a COA only if he demonstrates that jurists of reason could disagree with the district court’s resolution of his constitutional claims or could conclude the issues presented are “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal quotation marks and citation omitted).

“[A] petitioner need not show that an appeal will succeed in order to be entitled to a COA. The question is the debatability of the underlying constitutional claim, not the resolution of the debate.”

Cardenas v. Dretke, 405 F.3d 244, 248 (5th Cir. 2005) (citations and internal quotation marks omitted).

Wood has sufficiently demonstrated that reasonable jurists may disagree with regard to whether he was denied a fair hearing as a result of the district court’s improper reliance upon its own experience with pro se litigants and Texas’ death row inmates.

“[T]he individual and extrajudicial knowledge on the part of the judge will not dispense with proof of facts not judicially cognizable, and cannot be resorted to for the purpose of supplementing the record.”

Fox v. City of West Palm Beach, 383 F.2d 189, 194-95 (5th Cir. 1967).

Here, the district court’s credibility determinations and factual findings were expressly based upon knowledge that the court independently procured outside the course of the current proceedings, and thus neither party could test these findings for relevancy or reliability.

Without citing empirical data, the court found that “virtually all of the Texas death row inmates with whom this Court has dealt have been diagnosed by qualified mental health professionals with antisocial personality disorder. It has been this Court’s experience that the vast majority of Texas prison inmates in general, and Texas death row inmates in particular, demonstrate several significant characteristics of antisocial personality disorder, specifically, an unwillingness to accept responsibility for their criminal conduct.”

Wood v. Thaler, 787 F.Supp. 2d 458, 296 (W.D. Tex. 2011).

Crediting the expert’s opinion who testified in accordance with the district court’s own experience, the court concluded that Wood does not suffer from a delusional disorder, but rather has a “highly manipulative antisocial personality,” and thus is ineligible for relief under Panetti. Id. at 498.

Jurists of reason could debate whether the district court’s improper reliance upon its past experience with death row inmates resulted in an unfair hearing in violation of Wood’s Fourteenth Amendment due process rights.

This claim therefore deserves encouragement to proceed further.

Additionally, Wood has made the requisite showing warranting COA on the related issue of whether the case should be remanded and reassigned . This Court’s power to reassign a case on remand is an “extraordinary power and should rarely be invoked.”

United States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999).

However, reassignment “may be authorized where the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, . . . where reassignment is advisable to preserve the appearance of justice[,] . . . or where the facts might reasonably cause an objective observer to question [the judge’s] impartiality.”

League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 675 F.3d 433, 440-41 (5th Cir. 2012) (third alteration in original) (quoting In re DaimlerChrysler Corp., 294 F.3d 697, 700-01 (5th Cir. 2002) (internal quotation marks omitted)).

Given the district court’s expressed views on the mental health condition of “virtually all” of the Texas death row inmates, reasonable jurists could debate whether the district court could reasonably be expected to disregard this expressed opinion. Moreover, its debatable whether an objective observer would reasonably call into question the judge’s impartiality towards Wood’s claim that he suffered from a delusional disorder.

We emphasize that we do not today find that remand and reassignment is necessary in this case , nor do we suggest that this is the proper disposition. Rather, we simply hold that Wood’s claim for remand and reassignment, as the corollary remedy to his due process claim, warrants encouragement to proceed.

Wood has not made the requisite showing to warrant a COA with regard to any additional claims.

Accordingly, the motion for a COA is GRANTED, and briefing limited to the merits of Wood’s claims regarding the district court’s improper reliance upon its own experience and the related claim for remand and reassignment is ordered.

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Execution Halted for Jeff Wood, Who Never Killed Anyone

The Texas Court of Criminal Appeals has halted the execution of Jeff Wood — a man who never killed anyone — six days before he was set to die by lethal injection.

AUG 19, 2016 | REPUBLISHED BY LIT: AUG 10, 2021

The Texas Court of Criminal Appeals has halted the execution of Jeff Wood — a man who never killed anyone — six days before he was set to die by lethal injection. The order was issued on his 43rd birthday.

The court issued a brief, two-page order Friday afternoon sending the case back to the original trial court so it can examine Wood’s claim that a jury was improperly persuaded to sentence him to death by testimony from a highly criticized psychiatrist nicknamed “Dr. Death.” The order creates the possibility that Wood’s death sentence could be thrown out, though not his conviction.

“The court did the right thing by staying Mr. Wood’s execution,” Wood’s attorney Jared Tyler said shortly after the order came down. “[He] is grateful for the opportunity to prove that his death sentence is unwarranted.”

Wood’s upcoming execution has gained national attention and highlighted Texas’ felony murder statute, commonly known as the law of parties, which holds that anyone involved in a crime resulting in death is equally responsible, even if they weren’t directly involved in the actual killing. Recently, conservative state representatives have spoken out and written letters to the parole board in hopes of saving Wood’s life.

Wood was convicted in the 1996 murder of convenience store clerk Kriss Keeran in Kerrville, even though he was sitting outside in the truck when his friend, Daniel Reneau, pulled the trigger.

During his sentencing trial, prosecutors brought in Dr. James Grigson, nicknamed “Dr. Death” because of how often he testified for the state in capital murder trials, to examine if Wood would be a future danger to society if he was given life without parole instead of death. A jury can only sentence someone to death if it unanimously agrees that person would present a danger.

In his recent appeal to the Court of Criminal Appeals, Wood’s lawyers claimed Grigson lied to jurors about how many cases he had testified in and how often he found the defendant to pose a future danger. He also misled the jury by omitting the fact that he was ousted from the American Psychiatric Association, Wood’s appeal claimed.

Throughout his career testifying in capital murder trials, the number of times Grigson claimed to have examined defendants for future dangerousness would change randomly and often drastically, the appeal states.

In the late 1980s, for example, Grigson testified in one trial that he had examined 180 to 182 cases, but seven months later, he claimed to have reviewed 156. And a year and a half later, the number jumped to ‘no fewer than 391,’ according to the appeal.

But no matter the raw number of cases, he always claimed he found about, or sometimes exactly, 40 percent of defendants to not be a future danger.

The order instructs the trial court to not only examine Grigson’s truthfulness, but to consider Wood’s argument that Grigson’s opinion was based on junk science. Grigson did not examine Wood himself but based his projection of Wood’s future dangerousness on a hypothetical person presented by the state. The practice was condemned by the American Psychiatric Association.

The appeal also claimed that Grigson misled the jury by omitting the fact that he was ousted from the association for reasons relating to how he reviewed capital murder defendants. In 1995, the association’s Board of Trustees voted to expel Grigson after an investigation revealed that his method of predicting future dangerousness in capital cases violated the association’s practice.

Three jurors from Wood’s trial have said they would have discounted Grigson’s testimony if they’d known of the expulsion, according to the appeal.

Wood’s scheduled Aug. 24 execution was thrust into the national spotlight because of the rarity of executions under felony murder statutes. But conservative lawmakers in Texas, who believe in the death penalty under the law of parties, also lost sleep over the case.

State Rep. Jeff Leach, R-Plano, had been lobbying the Texas Board of Pardons and Paroles and Gov. Greg Abbott to change Wood’s sentence or issue a stay. Leach said he didn’t believe Wood was a part of the murder. He had collected signatures from more than 50 fellow House members on a letter asking that Wood’s sentence be commuted to life.

Rep. James White, R-Woodville, wrote a letter to the board as well, asking for a change of sentence in order to “preserve the legitimacy of the Law of Parties.” And Rep. David Simpson, R-Longview, wrote a similar opinion piece for The Texas Tribune.

Presiding Judge Sharon Keller and Judge Lawrence Meyers dissented on the court’s ruling. Judge Elsa Alcala, though concurring with the court’s order, wrote her own opinion, claiming that the court should have sent back other claims to the trial court.

“I would also remand claims … in which applicant alleges that his participation in the offense and his moral culpability are too minimal to warrant the death penalty, that evolving standards of decency now prohibit the execution of a person who was convicted as a party to a capital offense, and, more generally, that Texas’s death-penalty scheme should be declared unconstitutional because it is arbitrary and fails to target the worst of the worst offenders,” Alcala said.

Related to this story:

Jeff Wood was outside in a pickup when his partner killed a Kerrville convenience store clerk during a robbery in 1996.

But Wood was sentenced to death under Texas’ felony murder statute, commonly known as the law of parties.

His family and attorneys are now desperately trying to save him from an Aug. 24 execution date.

State Rep. Jeff Leach, R-Plano, a staunch conservative, is trying to stop the upcoming execution of Jeff Wood, who was sentenced to death even though he killed no one.

Leach is asking Gov. Greg Abbott and the Texas Board of Pardons and Paroles to commute Wood’s sentence to life.

Judge, You Can’t Rely Upon Dr. Death and Bias About Pro Se’s Rules Fifth Circuit
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