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One Justice Said Anti-Semitic Judge on Death Penalty Case Was ‘Deeply Disturbing.’ SCOTUS Did Nothing About It.

Randy Halprin of so-called “Texas Seven” infamy is currently incarcerated on death row in the State of Texas. Halprin happens to be Jewish. And the judge who oversaw his initial trial just so happened to be an antisemite.

The Supreme Court of the United States is aware of all this. On Monday, however, the nation’s highest court issued a denial of certiorari in Halprin’s appeal raising a claim of judicial bias.

The full court declined to explain their reasoning but Justice Sonia Sotomayor was, for the second time on Monday, a lone exception.

“The facts underlying this petition are deeply disturbing,” the justice noted. “I nevertheless do not dissent from the denial of certiorari.”

Sotomayor went on to offer two distinct reasons why:

First, state-court proceedings are underway to address—and, if appropriate, to remedy—Halprin’s assertion that insidious racial and religious bias infected his trial. For its part, the State [of Texas] represents that “Halprin has not been deprived of an opportunity to bring his claim in state court” because the Texas Court of Criminal Appeals recently “stayed his execution and remanded his judicial bias claim to the trial court for review.” Thus, were the Texas courts to agree with Halprin on the merits of his judicial-bias claim, this petition for a writ of certiorari about a federal procedural provision would become moot.

Second, and perhaps even more hopeful for the accused, Sotomayor notes that the court’s Monday denial “carries with it no implication whatever regarding the Court’s views on the merits of” Halprin’s case itself–which is another way of saying the certiorari denial was based on a procedural technicality; and which also tends to suggest that Sotomayor herself feels Halprin’s underlying case is quite strong.

The justice tidily summarized some of those underlying details:

The State of Texas tried Halprin and the other escapees separately for their roles in [police officer Aubrey Hawkins’s] death. Presiding over most of those trials, including Halprin’s, was Judge Vickers Cunningham

Years after the trial, Cunningham—no longer a judge—ran for a position as a county commissioner. In May 2018, a news outlet published that Cunningham had created a living trust for his children that would have withheld payments had they married nonwhite non-Christians. (Halprin is Jewish, a fact that featured prominently at his trial.) A former campaign staffer of Cunningham’s also relayed to the news outlet that the former judge used the  acronym “T.N.D.”—short for “Typical N*** Deals”—to refer to criminal cases involving black defendants.

Witnesses recounted that, shortly after Halprin’s trial, Cunningham had referred to Halprin with derogatory terms like “f***n’ Jew”—and that the former judge had also referred to Halprin’s accomplices using similar slurs. Halprin’s counsel further discovered that Cunningham had told campaign staffers that he sought public office to “save” his city from “‘n***s,’ ‘wetbacks,’ Jews, and dirty Catholics.

Law&Crime previously reported on Cunningham’s antisemitic slurs against Halprin. An August 2019 filing by Halprin’s attorneys elaborated:

The Honorable Vickers Cunningham, the presiding judge at Mr. Halprin’s capital trial, is a racist and anti-Semitic bigot who described Mr. Halprin as “that fuckin’ Jew” and a “goddamn kike.” That judge—who decided all pretrial motions, challenges during jury selection, and all objections during the taking of evidence—believed that Jews “needed to be shut down because they controlled all the money and all the power.”

In the end, the Supreme Court decided this evidence of judicial bias just wasn’t enough to trigger a review of his case–again, largely for procedural reasons.

But Sotomayor apparently felt strongly enough to console Halprin and his attorneys about the underlying strength of their “potent arguments.”

“Though the Fifth Circuit has already interpreted §2244 to deny Halprin authorization to file a petition [for the writ of habeas corpus], this Court’s denial of certiorari does not prevent Halprin from seeking direct review from a constitutional ruling by the Texas court,” Sotomayor wrote. “Nor does it preclude Halprin from seeking an original writ of habeas corpus under this Court’s Rule 20.”

Halprin’s attorney Tivon Schardl said in a statement obtained by Law&Crime said that the upshot of Sotomayor’s words was three-fold:

Justice Sotomayor’s statement about Randy Halprin’s case expresses three important points: first, that the facts stated in Mr. Halprin’s petition are “deeply disturbing”; second, that today’s decision not to resolve the question of federal habeas corpus law presented in Mr. Halprin’s petition carries no implication about how it might rule on the underlying claim; third, that Justice Sotomayor has “trust that the Texas courts now considering [Mr.] Halprin’s case are more than capable of guarding the fundamental guarantee” of a fair trial in a fair tribunal.

Schardl later elaborated on the basic contours of the case and the process for moving forward in an exclusive statement to Law&Crime.

“Mr. Halprin did not kill anyone but was convicted and sentenced to death under Texas’s ‘law of parties,’ a controversial law which holds co-conspirators just as criminally liable as shooters,” he noted. “The jury was concerned about Mr. Halprin’s role under the law of parties, and whether he ‘anticipated’ that someone else would use deadly force in a crime, which is sufficient for a death sentence under Texas law. They sent Judge Cunningham a note asking for the definition of ‘anticipate,’ and for statements and other evidence that supported Mr. Halprin’s case. Judge Cunningham did not make a record of how he responded to the jurors’ notes.”

Texas “state courts are considering the claim,” rejected on Monday by the Supreme Court, Schardl noted.

“On October 6, 2019, the Texas Court of Criminal Appeals, the highest criminal court in Texas, stayed Mr. Halprin’s execution, and ordered the trial court to consider his judicial bias claim,” the attorney continued. “On April 1, 2020, the State of Texas…allowed a statutory deadline to pass without filing a response to Mr.Halprin’s claim. It is now up to the trial court to hold a hearing and issue findings of fact and conclusions of law for the Court of Criminal Appeals to review.”

Schardl previewed the defense’s likely line of argument ahead:

The anti-Semitic judge’s role in Halprin’s trial strikes at what Chief Justice John Roberts recently called “a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are.”

The Free Exercise Clause of the First Amendment “protects against governmental hostility which is masked, as well as overt,” and outlaws even “subtle departures from neutrality on matters of religion.” As the Supreme Court observed, a judge’s “lightest word or intimation is received [by jurors] with deference, and may prove controlling.”

While acknowledging the definite short term defeat, some of Halprin’s other supporters also welcomed the denial’s silver lining.

“Justice Sotomayor wrote a favorable opinion concerning the denial,” noted Friends of Randy Halprin via Twitter. “Sotomayor appears to be putting some pressure on the state court to do the right thing. Today’s decision is not a complete loser! There is definitely some positivity to be read from Sotomayor’s opinion.”

[image via Chip Somodevilla/Getty Images]

Editor’s note: this article has been amended post-publication to include additional comments from Halprin’s defense attorney.

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