A dissenting federal appellate judge took the seemingly unusual step of issuing a mock majority opinion this week to illustrate his disagreement with the actual majority ruling to keep a pause on a convicted murderer's execution in Texas, calling his decision "the Fifth Circuit panel opinion that should have been issued."

U.S. Circuit Judge Jerry Smith on Monday issued the fake opinion, formatted in the style of a real opinion and with the entire panel of judges listed, "in the interest of time, instead of penning a long dissent pointing to the panel majority's and district court's myriad mistakes."

"The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago," Judge Smith wrote.

The mock opinion includes a fake order at the end in which the panel supposedly vacates the stay of execution in question, although the document is labeled as an "attachment to dissent." Judge Leslie Southwick, who wrote the majority opinion, referred to Judge Smith's mock opinion as an "alternative opinion."

Dylan Drummond, a senior attorney at Mayer LLP in Dallas practicing civil appellate law, who is not involved in the matter, said Tuesday he had never seen this particular kind of formatting in his career.

"The layman public that our courts aspire to write to could be confused by it," Dylan told Law360 Pulse.

Dylan said that based on the way it was filed, the document would be more clearly marked as a dissent in a legal publication, but it was still "needlessly confusing." He also showed skepticism at the idea that it resulted from a mix-up in determining whether Judge Smith was writing for majority or not, noting that although the appeal was handled in a tight timeframe, the Fifth Circuit handles cases like this often.

"To me, it reads and feels like a stylistic choice," Drummond said.

In the real court order, the other two judges on the panel, U.S. Circuit Judges Southwick and James Graves, declined the state of Texas' emergency appeal asking the jurists to vacate a stay of execution for Jedidiah Murphy, who was scheduled to be executed Tuesday.

A last-minute motion filed by Murphy in the district-level court in late September raised some questions that are going to be ruled on soon in another suit, the appeals panel determined, so the judges declined for now to rule on whether to vacate the stay of execution.

Murphy was convicted in 2000 of murdering an 80-year-old woman and sentenced to death, in part because of his future dangerousness, which the prosecution demonstrated by implicating Murphy in another crime he was not ultimately tried for, the appellate panel wrote. His September motion to the trial court sought to stay his execution while he obtained DNA evidence that will supposedly exonerate him of the other crime.

Judge Smith's "opinion" stated that, "the district court abused its discretion in granting the September motion to stay execution because Murphy has failed to demonstrate that he is likely to succeed on the merits of any claim in the September complaint, and no other equitable factors weigh in his favor."

The Supreme Court granted Texas' application to vacate the stay of execution in an order published Tuesday. 

In the wake of the appeals court's decision not to vacate the stay, Texas filed an emergency application with the U.S. Supreme Court appealing the district court's stay of execution. Prosecutors quoted directly from the fake opinion, which they cite as Judge Smith's dissent, calling the appeals court's decision a "grave error."

A representative of Judge Smith's chambers declined to comment Tuesday on the dissent, as a matter of policy. Judge Smith was nominated to be a federal judge by President Ronald Reagan in 1987.

U.S. Circuit Judges Leslie Southwick, James Graves Jr. and Jerry Smith sat on the panel for the Fifth Circuit.

Ali Nasser, a Texas assistant attorney general who is the named defendant in the case, is representing himself.

Murphy is represented by Catherine Clare Bernhard of the Law Office of Catherine Clare Bernhard, and Katherine Froyen Black and Russell David Hunt Jr. of the Law Office of Russ Hunt Jr.

The case is Murphy v. Nasser, case number 23-70005, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Covey Son.

Correction: This article has been corrected to clarify which judge used the term "alternative opinion." This article has also been updated with information on the Supreme Court's decision regarding the case.