Texas Top Court Gives New Trial to Death Row Inmate Because of Trial Judge's Antisemitism

 In Ex Parte Halprin, (TX Ct. Crim. App., Nov. 6, 2024), the Texas Court of Criminal Appeals in a 6-3 decision granted a new trial to one of the so-called Texas Seven prison escapees who had been sentenced to death for murdering a police officer during the robbery of a sporting goods store shortly after their escape. The court concluded that the trial judge, Vickers Cunningham, was biased against Halprin because Halprin is Jewish.  The court said in part:

The evidence adduced in these habeas proceedings concerning Halprin’s judicial bias claim consists primarily of anti-Semitic statements attributed to Cunningham that, according to the witnesses, he made in generally private or semi-private settings rather than from the bench in open court or in chambers....

The uncontradicted evidence supports a finding that Cunningham formed an opinion about Halprin that derived from an extrajudicial factor—Cunningham’s poisonous anti-Semitism. Cunningham’s references to Halprin are not to “the fucking [murderer]” or “the filthy [criminal]” or “the [murderer] Halprin,” which might be fairly said to derive from the evidence presented at Halprin’s capital murder trial. Rather, Cunningham’s derogatory references to Halprin are expressly tied to Halprin’s Jewish identity.

Judge Richardson, joined by Judges Newell and Walker filed a concurring opinion, saying in part:

This is not a case in which the action of a trial judge may just “look bad.” This is not a case in which there is merely the “appearance of impropriety.” This is a case where a person’s lifelong hatred and prejudice against Jews made him unfit to preside over this case. And that toxic viewpoint runs counter to our concept of the Rule of Law because “[o]ur law punishes people for what they do, not who they are.”

Thus, no precedent, rule, technicality, or excuse can justify allowing such a demonstrably biased person to constitutionally stand in judgment over a member of a class of people the judge espouses to hate. It violates our fundamental sense of fair play and the Supreme Court’s motto “Equal Justice Under Law” beneath which our precedent arises.

Judge Yeary filed a concurring opinion saying that the majority reached the correct result but used the wrong standard to reach it.  He said in part: 

... [T]he question is “not whether the judge is actually, subjectively biased, but whether the average judge in [the challenged judge’s] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

Presiding Judge Keller, joined by Judges Keel and Slaughter filed a dissenting opinion saying in part:

The Court misunderstands the law regarding disqualification of a judge for bias.  It grants Applicant relief on the basis of the trial judge’s personal views and out-of-court comments about Applicant’s religion.  But under Supreme Court precedent, in order for a judge who holds derogatory views about a defendant’s religion to be disqualified, there must be a showing that the judge’s conduct in the criminal proceedings was influenced by his derogatory views.  What a judge does can violate the Constitution.  What he thinks cannot.  Nothing in the record on habeas or at trial shows, or even suggests, that the trial judge’s views influenced how he conducted the criminal proceedings in this case.

Texas Public Radio and AP report on the decision. [Thanks to Thomas Rutledge for the lead.]

11th Circuit Rejects RLUIPA Challenge to Novel Execution Method; Supreme Court Denies Review

In Smith v. Commissioner, Alabama Department of Corrections, (11th Cir., Jan. 24, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision refused to stop the January 25 execution of death row inmate Kenneth Smith.  The U.S. Supreme Court also refused to stay Smith's execution and denied certiorari in the case, initially in an Order dated January 24 (Smith v. Alabama, (Docket No. 23-6517)), and subsequently in an order dated January 25, to which Justice Sotomayor filed a dissent, as did Justice Kagan joined by Justice Jackson. (Smith v. Hamm, (Docket No. 23-6562)). Smith was executed in the evening of January 25. The case has garnered substantial news coverage because Alabama used a novel execution method-- nitrogen gas-- after a first attempt at execution by lethal injection failed. In addition to 8th Amendment claims, Smith, who wished to engage in audible prayer as he was being executed, raised free exercise claims under RLUIPA (as well as other claims).  The 11th Circuit affirmed the district court's refusal to issue a preliminary injunction, saying in part:

Here, Smith argues that the Protocol substantially burdens his ability to audibly pray during the course of his execution because he faces an untenable choice—audibly pray or face a substantial risk of superadded pain or prolonged death due to a dislodged mask. It is not speculative that Smith would engage in religious exercise because he both audibly prayed and sang the contemporary hymn “I Am Not Alone” during his failed execution. However, we cannot say that the district court clearly erred when it found that any risk of the mask gaping or dislodging is speculative based upon the same factual findings regarding the mask’s design, fit, and nitrogen volumes above. Without such findings, we cannot conclude that Smith will be substantially burdened in his ability to audibly pray during the course of the execution. Based upon this standard of review, we are bound to accept the district court’s findings as to Smith’s claim and affirm the district court on its RLUIPA holding.

Judge Wilson filed a concurring opinion and Judge Pryor filed a dissent on the 8th Amendment issue.

Inmate's Speech and Religion Challenges to His Execution Method Are Not Dismissed, But Execution Not Enjoined

In Smith v. Hamm, (MD AL, Jan. 10, 2024), plaintiff, who is scheduled for execution by nitrogen hypoxia on January 25, challenges the legality of his execution on several grounds.  Among these are his claims that his free speech rights as well as his free exercise rights are violated because masking him will interfere with his making an audible statement and praying audibly during his execution.  The court concluded that plaintiff had made plausible claims that the execution protocol violates his First Amendment free speech rights and his religious free exercise rights under RLUIPA, the First Amendment and the Alabama Religious Freedom Act (as well as his 8th Amendment rights).  Therefore, it denied defendants' motion to dismiss those claims.  The court went on, however, to conclude that plaintiff had not shown a substantial likelihood of success on the merits of those claims. Therefore, the court refused to issue a preliminary injunction to bar execution of plaintiff. At issue in the case is the state's second attempt to execute plaintiff. A previous attempt to execute him by lethal injection failed when after 90 minutes of trying, authorities were unable to access his veins.

Exclusion of Jurors Who Have Conscientious Objection To Death Penalty Does Not Violate Free Exercise Clause

 In State of Louisiana v. Neveaux, (LA App., Nov. 8, 2023), a Louisiana state appeals court rejected a free exercise challenge to a provision in the Louisiana Code of Criminal Procedure that permits the prosecution in a capital case to challenge for cause a juror "who has conscientious scruples against the infliction of capital punishment" and makes it known that for this reason he would automatically vote against imposing capital punishment or that his beliefs would substantially impair him from making an impartial decision. The court, rejecting the contention that there must be a compelling state interest to support this provision concluded in part:

[W]e find that La. C.Cr.P. art. 798(2)(a) and (b) is neutral and generally applicable because (1) it does not focus on a particular religion or religion at all, and (2) it applies to anyone regardless of the source of his or her views on the death penalty.

Clergy Sue Federal Penitentiary To Obtain Physical Contact With Death Row Inmates

Suit was filed last week in an Indiana federal district court by two ministers who regularly visit death row inmates in a federal penitentiary in Indiana. One plaintiff is an Episcopal minister and the other in the Unitarian Universalist Church and the Christian Church (Disciples of Christ). The complaint (full text) in Eiler v. Complex Warden, Federal Correctional Complex, Terre Haute, (SD IN, filed 4/25/2023), alleges violations of the Religious Freedom Restoration Act, saying in part:

The plaintiffs have sincere religious beliefs that at times during prayer they must be able to touch the prisoners and the prisoners desire that this physical contact occur during prayer. However, they are precluded from touching the prisoners by defendant’s policy that allows them only non-contact visitation. This policy burdens plaintiffs’ religious exercise without justification.

The complaint also alleges that barring physical contact with prisoners as they are being executed violates plaintiffs' free exercise rights under RFRA. WFIU reports on the lawsuit.

5th Circuit: District Court's Order on Religious Rights in Execution Chamber Was Too Broad

In Barbee v. Collier, (5th Cir., Nov. 11, 2022), the U.S. 5th Circuit Court of Appeals vacated and remanded for further proceedings an injunction issued by a Texas federal district court that barred the execution of convicted murderer Stephen Barbee until the Texas Department of Criminal Justice publishes a clear policy on inmates' religious rights in the execution chamber. Barbee wants his spiritual advisor to pray aloud with him and hold his hand. (See prior posting.) The 5th Circuit said in part:

While a written policy may be desirable ..., the available remedy for Barbee’s RLUIPA violation “is an injunction ordering the accommodation,” ... As it stands, the preliminary injunction ordering the Defendants to enact a written policy on religious accommodation that would apply to all executions is overbroad and must be vacated. The district court may instead consider what relief specific to Barbee is consistent with Ramirez and is appropriate in this case.

On Monday, Barbee filed with U.S. Supreme Court Justice Samuel Alito an Application for a Stay of Execution (full text) and a Petition for Certiorari (full text). Yesterday, the state filed a Brief in Opposition to Barbee's filings (full text). Barbee's execution is currently scheduled for 6:00 pm Central Time today.  Courthouse News Service reports on these developments.

UPDATE: On Wednesday, Nov. 16, the U.S. Supreme Court denied Barbee's application for a stay of execution and his petition for certiorari. (Full text of Order.). Courthouse News Service reports.

Texas Prisons Must Adopt Formal Policy on Religious Rights in Execution Chamber

In Barbee v. Collier, (SD TX, Nov. 3, 2022), an inmate whose execution had been scheduled sought a court order from a Texas federal district requiring Texas to allow his spiritual advisor to be present with him in the execution chamber, to pray audibly with him and have physical contact with him, holding his hand, to confer a blessing on him. The Director of the Texas Department of Criminal Justice filed a series of affidavits assuring the court that these requests would be granted and moved dismiss the lawsuit as moot. The court, however, was unconvinced, saying in part:

In Ramirez [v.  Collier], the Supreme Court encouraged States to "adopt clear rules" and "streamlined procedures" that would protect an inmate's religious rights in the execution chamber.... TDCJ has not responded by enacting any formal policy guaranteeing religious expression in the execution chamber. Instead, TDCJ has left in place an official execution protocol that contains provisions describing the presence, approval process, and vetting requirements for spiritual advisors. Hence, the 2021 protocol is silent as to what a spiritual advisor may do, if anything, inside the execution chamber.,,, 

TDCJ has apparently left the question of what a spiritual advisor may do to the discretion of prison officials.... Until quite recently, TDCJ officials interpreted the silence in the official protocol to prohibit any physical touch or audible prayer in the execution chamber. Now, TDCJ would have the Court accept their latest pronouncement that the same provisions may be read to allow physical contact and audible prayer.... TDCJ officials have initiated a practice of allowing physical contact and audible prayer when the requests are sufficiently timely and permit security checks.

However, the defendants have not specifically formalized in a policy or otherwise described what the basis is for it unwritten practice....

[TDJC] has been encouraged by the highest court in the land to develop a policy that can be reviewed.  The stubbornness of TDCJ to enact a policy that removes all discretion, except in critical instances, militates against extending the lesser burden to TDCJ.

The court entered a Preliminary Injunction that provides:

Texas [TDCJ] may proceed with the execution of Stephen Barbee on November 16, 2022, only after it publishes a clear policy that has been approved by its governing policy body that (1) protects an inmate's religious rights in the execution chamber and (2) sets out any exceptions to that policy, further describing with precision what those exceptions are or may be.

11th Circuit: Muslim Prison Chaplain Loses Suit Over Exclusions From Execution Chamber

In Maisonet v. Commissioner, Alabama Department of Corrections, (11th Cir., Sept. 16, 2022), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of a suit by a Muslim volunteer Chaplain who claimed that his free exercise rights were infringed when he was prevented from being in the execution chamber when two inmates to whom he ministered were executed. The court held that the chaplain lacked standing to obtain declaratory or injunctive relief because he did not identified any death row inmate whose execution he will be unable to attend in the future. Alabama now allows chaplains in the execution chamber. The court concluded that the chaplain did have standing to pursue his claim for damages in the cases of the two inmates whose executions he was unable to attend previously. However qualified immunity shields defendants from liability.

Texas Must Grant Execution Chamber Religious Accommodations

 AP reports that on July 5 the federal district court for the Southern District of Texas in Gonzales v. Collier issued a temporary injunction barring the execution of death row inmate Ramiro Gonzales unless authorities grant all of his requested religious accommodations. According to AP:

Gonzales, 39, has asked that when he is executed, his spiritual adviser be allowed in the death chamber so she can pray aloud, hold his hand and place her other hand on his chest.

“...The specific physical contact I have requested is vitally important to me as I am making my spiritual transition into the paradise of God,” Gonzales said in court documents filed last month.

... [O]fficials have argued allowing the hand holding could be a security risk as the adviser would be too close to the IV lines that deliver the lethal injection and the adviser would be in a location that would block the view of authorities and witnesses.

Prosecutor's Ethical Objection To Death Penalty Was Not Reason To Withdraw Execution Warrant

Texas Tribune reports that yesterday a Texas state trial court judge rejected a request submitted jointly by the prosecutor and the defense attorney to withdraw a warrant setting the execution date for convicted murderer John Ramirez for October 5. The request to withdraw the execution date came two days after the court set it. District Attorney Mark Gonzalez said that he is ethically opposed to the death penalty and did not want the death penalty imposed on any prisoner while he is in office. An assistant district attorney had filed the request to set the execution date without conferring with Gonzalez. An appeal is planned. Ramirez was the petitioner in a RLUIPA case decided by the U.S. Supreme Court last year holding that he was entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the him and audibly pray with him. (See prior posting.)

Court Enjoins Autopsy In Suit By Inmate Facing Execution

In Smith v. Li, (MD TN, April 20, 2022), a Tennessee federal district court, in a RLUIPA suit by an inmate about to be executed, enjoined the state's medical examiner from performing an autopsy after the execution, collecting fluids postmortem, or performing any other procedure violating plaintiff's the body's physical integrity after death. The court said in part:

It may be that the medical community does not consider the collection of fluid samples to constitute an “autopsy.” That fact, though, has no bearing on either the sincerity or the content of Smith’s religious beliefs, which do not depend on any such distinction. It is not the place of Dr. Li, the government, or the court to try to convince Smith that he should not consider the postmortem collection of his bodily fluids to be an impermissible intrusion on his religiously mandated bodily integrity. If Smith does sincerely believe that—and the court finds that he does— then Dr. Li’s stated intention to violate his beliefs implicates RLUIPA, whether Dr. Li finds Smith’s theological explanation persuasive or not....

Under these circumstances, where the decision whether to conduct an autopsy is left to the discretion of the county medical examiner and, alternatively, to that of the state chief medical examiner or the district attorney general, it is difficult to see how the government could show that conducting an autopsy is necessary to fulfill a compelling government interest. If the interest were truly compelling, the statute presumably would mandate it.

Imam Lacks Standing To Challenge Alabama Execution Exclusion

In Maisonet v. Dunn, (SD AL, Nov. 17, 2021), an Alabama federal magistrate judge recommended dismissing for lack of standing a suit by an imam who has previously ministered to inmates on Alabama's death row. Plaintiff challenges Alabama's new execution protocol which bars all religious advisors from the execution chamber. The magistrate judge said in part:

The allegation that "ADOC will continue to enforce a policy of excluding religious advisors—including Imam Maisonet—from the execution chamber" ... is insufficient because the Court has already held that Maisonet does not have a constitutionally protected right to be present in the execution chamber and because there is no allegation, for example, that Maisonet plans to attend a specific execution or that any inmate desires to have Maisonet attend an execution. Although Maisonet alleges that he "remains committed to providing religious support and guidance to the Muslims on Alabama's death row" ..., a commitment to religious support and guidance does not establish a certainly impending injury....

[T]he third-party inmates on Alabama's death row could assert their own rights and, in fact, have done so in appeals all the way to the United States Supreme Court. "It is the inmates, not [Maisonet], who have standing to pursue the primary claim he articulated."

Supreme Court Hears Arguments On Role Of Chaplain In Execution Chamber

The Supreme Court hears oral arguments this morning in Ramirez v. Collier. In the case, a convicted murderer is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. The 5th Circuit, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution. However the Supreme Court granted a stay and scheduled early oral argument in the case. (See prior posting.) Here is the SCOTUS blog case page with links to filings in the case. AP has more background. The oral arguments will be live-streamed here. I will update this post with links to the transcript and audio of the oral arguments when they become available.

UPDATE: Here are links to the transcript and audio of arguments in the case. SCOTUS blog reports on the oral arguments.

Supreme Court Lifts Stay Of Execution Despite Inmates' Religious Objections To Sentence Conditions

The U.S. Supreme Court yesterday, by a vote of 5-3, in a brief Order (full text) vacated a stay of execution that had been entered by the 10th Circuit in Crow v. Jones (Sup. Ct., Docket No. 21A116). According to the New York Times:

The inmates, John Marion Grant and Julius Jones, had argued that the state’s [Oklahoma's] lethal injection protocol, which uses three chemicals, could subject them to excruciating pain.

They also objected on religious grounds to a requirement imposed by a trial judge that they choose among proposed alternative methods of execution, saying that doing so would amount to suicide.

Supreme Court Grants Review On Role Of Spiritual Advisor In Execution Chamber

In Ramirez v. Collier, (5th Cir., Sept. 6, 2021), the U.S. 5th Circuit Court of Appeals, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution to a convicted murderer who is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. (Background from New York Times.) Texas allows spiritual advisors to be present in the execution chamber, but they may not physically touch the prisoner nor speak. Judges Owen and Higginbotham each filed an opinion concurring in the per curiam order denying a stay.  Judge Higginbotham said in part:

[T]he complexities attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. This is plainly a humane effort with constitutional footing with steps long side those of spiritual needs.

Judge Dennis dissented arguing that petitioner has made a strong showing that the state's policy substantially burdens his religious exercise in violation of RLUIPA. He said in part:

The State has not shown why its policy of prohibiting even a brief audible prayer and any physical touching is the least restrictive means of achieving its compelling interest in this specific case. Rather, the State has largely offered general concerns about security. I do not doubt that these concerns are legitimate and important. But that is not enough to satisfy RLUIPA’s “exceptionally demanding” standard.... 

However this evening, the U.S. Supreme Court granted a stay of execution and agreed to review the case. (Ramirez v. Collier, (Docket No. 21-5592, cert. granted 9/8/2021) (Order List). The Court's order granting certiorari calls for a briefing schedule that allows the case to be argued in October or November 2021.

Conviction and Sentence of Mother Emanuel Church Shooter Uphehld

In United States v. Roof, (4th Cir., Aug. 25, 2021), the U.S. 4th Circuit Court of Appeals, in a 149-page opinion, affirmed the hate crime and obstructing religion convictions of Dylan Roof who shot and killed nine members of Charleston, South Carolina's Mother Emanuel Church who were attending a Bible study group. Roof's attorneys raised 19 separate issues on appeal. The court concluded that proof of religious hostility is not required for a conviction under the religious obstruction statute, 18 USC § 247(a)(2). It also concluded that Congress did not exceed its powers under the 13th Amendment when it enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249. The court also upheld the death sentence imposed, saying in part:

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.

ABC reports on the decision.                       

Texas Will Now Allow Spiritual Advisor In Execution Chamber With Prisoner

 AP and Texas Tribune report that Texas prisons will now allow any inmate being executed to have his personal religious adviser with him in the execution chamber so long as the adviser is verified and passes a background check. This change in policy follows the U.S. Supreme Court's questioning of earlier Texas policies which first limited inmates to having the prison's Christian chaplain and then excluded all spiritual advisors. (See prior posting.) The policy change was signed on Wednesday by director of the Correctional Institutions Division of the Texas Department of Criminal Justice. [Thanks to Scott Mange for the lead.]

USCIRF Reports On 10 Countries That Use Sharia To Justify Death Penalty For Same-Sex Relationships

This week, the U.S. Commission on International Religious Freedom issued a Fact Sheet on The Use of Shari’a as Religious Justification for Capital Punishment Against LGBTI Persons. It states in part:

There are 10 countries where consensual same-sex relationships are formally punishable by death, all of which justify denial of rights and personhood on official interpretations of Shari’a.

It lists those countries as: Iran, Saudi Arabia, Yemen, Nigeria, Somalia, Mauritania, United Arab Emirates, Qatar, Pakistan, Afghanistan.

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.

11th Circuit: Pastor Should Be Allowed In Execution Chamber

In Smith v. Commissioner, Alabama Department of Corrections, (11t Cir., Feb. 10, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, reversed an Alabama district court's denial of an injunction to an inmate seeking to have his pastor present in the execution chamber with him. Prison rules allow only members of the execution team and certain medical personnel to be present. Focusing on RLUIPA, the majority said in part:

Although it correctly found Smith had a sincere belief that Pastor Wiley should be present in the execution chamber, the court erred by finding Smith’s exercise of that belief was not substantially burdened simply because Smith expressed a “preference” rather than prove his belief was fundamental to his religion. The court also improperly relied on alternative ways that Smith could practice his religion, including that Smith can visit and pray with Pastor Wiley leading up to his execution and Pastor Wiley can observe the execution from the viewing room.

The majority went on to conclude that while the state has a compelling interest in prison security, its policy is not the least restrictive means of achieving that interest.  It could, as does the federal prison system, require the prisoner to designate his spiritual advisor as soon as an execution date is set so that the state can conduct a background check.

Judge Jordan dissented, saying in part:

Whether the district court got RLUIPA’s least restrictive means requirement right or wrong, I do not believe that its decision constitutes an abuse of discretion.