In a comment to our previous post, "federalist" points us to this story on curious case of denial of a stay to Texas murderer Michael Richard on Sept. 25. The Supreme Court granted a stay to Carlton Turner on Sept. 27, and the Texas Court of Criminal Appeals granted one Tuesday to Heliberto Chi.

The story says that Richard's lawyers asked the Texas CCA to stay open after 5:00 p.m., and they refused. I don't practice in that court, so I don't know if that is credible. What I do not find credible is this statement in the article:

The legal move [going to the U.S. Supreme Court] delayed the execution by a few hours, but since the convict did not file his appeal with a local court first, his arguments were not accepted in Washington.

Now, Rule 23 generally requires seeking a stay from a lower court first, but it makes an express exception for "extraordinary circumstances," which the events related in the story, if true, would certainly be. SCOTUS has a full time emergency applications clerk whose job is to deal with issues like this, and I am quite sure he is familiar with the rule.

How does the reporter know what the reason for denial was? The orders, at the end of the Sept. 25 orders list, are unexplained. The story doesn't say. I find it difficult to believe that the Court would have denied a stay on that basis in these circumstances, especially without dissent.

Is this just speculation from defense counsel being reported as fact? It wouldn't be the first time. This is bad press for both the Supreme Court and the Texas CCA, and the resulting loss in public confidence in the courts is a good reason not to issue unexplained orders in cases such as this. The Court should issue a postmortem opinion explaining why it denied relief, as it did in Ex parte Quirin, 317 U.S. 1 (1942).