Mass Murderer Seeks SCOTUS Stay Over Video Spat

Yesterday’s News Scan noted the case of Texas quintuple murderer Able Ochoa. The Texas Court of Criminal Appeals denied his stay request Monday. Now he has gone to the U.S. Supreme Court, case No. 19-7572, stay application 19A876.

The reason that the highest court of the land should stop the execution of long overdue justice for a man who murdered five people in his own family, including his two baby daughters, is that the prison wouldn’t let him make a video for his clemency application. Really, I’m not making that up.

From the stay petition:

Mr. Ochoa’s case comes before this Court with a 42 U.S.C. § 1983 action still pending in district court. Over two months before his scheduled execution date, Abel Ochoa contacted Texas prison officials requesting permission to film an interview to submit as part of his request for clemency. (R.10–11). Because the prison routinely grants requests from members of the media to film Texas death row inmates, he had no reason to believe his request would be denied. (R.12–15). Yet, Texas prison officials refused to allow Mr. Ochoa to make his final plea for life in a filmed clemency interview unless he first secured a court order. Mr. Ochoa sued under 42 U.S.C. § 1983, alleging that the prison’s policies and practices interfered with his clemency process in violation of his constitutional and statutory rights. (R.5–22). To remedy these violations, Mr. Ochoa requested declaratory and injunctive relief, and a court order to permit the filming. (R.21).

People apply for clemency without a video all the time. Inability to make one is not interference with the clemency process. You lose most of your liberty when you go to prison for a major crime, like, e.g., murder, and not being able to make videos whenever you want is a small part of that package.

In any event, Ochoa got his video interview on January 13, the District Court’s order says. That “interview mooted much of Ochoa’s lawsuit.” That fact is curiously absent from the Background section of the stay petition.

The petition claims, “Mr. Ochoa’s handling of this suit exemplifies a model of diligent litigation.” Really? A court of equity inquiring into diligence should consider the whole picture, not just the current round of the battle. Ochoa made his video request November 20, 2019, about two months before his scheduled execution. He only then started working on his clemency petition?

A case is pretty much over when the federal court of appeals panel turns it down. Further consideration on the merits by the full court of appeals or Supreme Court is possible but unlikely. Work on the clemency petition should begin on that date, at the latest.

In this case, that date was October 18, 2018, when the Fifth Circuit denied Ochoa’s request for a certificate of appealability. See 750 Fed. Appx. 365. Why is his request to make a video dated 13 months later?

The remaining issues in this case border on trivial. Justice for five murders is vastly more important.

Ochoa is represented by the Federal Public Defender. The use of taxpayer money for this kind of frivolous petition requires serious reconsideration by Congress.