Fifth Circuit Judge Adds Alternate Majority Opinion to Dissent (2)

A federal appeals court judge published what he described as the opinion “that should have been issued” to his dissent in a death penalty case, in a move attorneys say marks a departure from typical practice.

Judge Jerry E. Smith of the US Court of Appeals for the Fifth Circuit, a Reagan appointee, wrote in a one-page dissent Monday that the majority’s decision — which preserved a pause on a Texas man’s scheduled execution — “is grave error.”

But in an unusual move, rather than elaborate in that dissent, he instead attached an opinion styled as a majority ruling, which ...