From Grits for Breakfast: Indulging despair over degraded state of TX high criminal court elections

Grits comments on an article I linked to last week where candidates to the Texas Court of Criminal Appeals discussed alternative - non criminal - ways to handle drug and mental health cases.

He;s critical of the superficiality of the article - as well as the fact that these judges are elected - which makes them inherently political, despite what we expect from the courts.

- Click here for the article.

It's hard to blame reporter Jonathan Silver too much. Nobody really covers the CCA as a beat anymore in the Austin press corps. So a layperson finds it difficult to nuance questions in such a way that the answers both give readers a sense of how the candidates would behave as judges but don't require them to opine on issues on which they'll later have to rule. It's a tricky line to walk. But instead of walking it, Silver's story retreated from it, asking questions which were either irrelevant to the court or too vague to matter.

It's not just reporters who don't know much about the court. Even the candidates don't really know what they're getting into. Judge Keel had a comment she thought was critical of Meyers, declaring "judges should not advocate for policy changes." I thought that was cute. It's the sort of thing trial judges think until they get on the court and discover how political the appellate process really is. Wait till she starts to show up at conference and finds that the Government Always Wins faction near constantly wants to rewrite the statutes to reach a desired outcome instead of interpret them on their face. The open question is whether Keel will join them and give Judge Keller and Co. a working majority, and this story provides nary a clue.

Regardless of the article's shortcomings, this is perhaps the most in-depth coverage of the CCA election we've seen beyond the various newspaper endorsements. Not that it matters. Voters don't know anything about these races and don't care. The odds are overwhelming that all the Republicans win.

The only outlier is the Donald Trump factor: If he continues to melt down and Republicans stay home in sufficient numbers to spur a Hillary Clinton victory in Texas, all the Ds in this race likely get elected. (What a twist it would be if Larry Meyers was the incumbent reelected instead of Mike Keasler!) But CCA elections aren't about who's the best judge or the issues facing the court. The primary season proved that. Court of Criminal Appeals races are either unassailable bastions for GOP incumbents or complete free-for-alls in which the unqualified and qualified are mixed together in a hat and then seemingly chosen at random by a blindfolded chimp.

This is fundamentally why Grits favors merging the CCA with the Texas Supreme Court. Electing judges is a bad idea, but it's even worse when candidates have no money to communicate with voters and the results are effectively random. The Texas CCA represents basically the worst-case scenario for electing instead of appointing judges. So Grits' support for a merger is more of a backup position. I'd rather not elect them at all, but if we must, combining Texas' high courts might at least improve this prostrated process.

Not so tough on crime

One way to reduce crime is to not define every problem as a criminal act subject to law enforcement. Two Texas Tribune stories touch on this idea.

- Most embrace some reforms in Court of Criminal Appeals races.

Regardless of party, most of the candidates for the state's highest criminal court say they want to see more cases involving drug addiction and mental illness moved out of the criminal justice system.

. . . Keasler and Meyers – a conservative and progressive, respectively, and two of the longest-serving judges on the court – said people dealing with drug addiction and mental illness don't belong in the criminal justice system. Walker said he's faced the issue with his clients.

"I see people all the time – I've had several cases recently where my clients are competent to stand trial, but they're not really capable of keeping up with probation. They honestly can't," Walker said. "And they need a very intensive type of probation with a whole lot of help. The system can't just put those kind of people out on the street and expect them to show up when they're supposed to show up and do all the programs they're supposed to do without some very intensive help."

Burns, who has presided over a diversion program for more than four years, said helping these offenders instead of punishing them works out in the long run.

"When it comes to drug offenses, I'm a big believer in diversionary programs," Burns said. "I really think that treatment works much better than incarceration because if you don't treat people who have drug problems, they're going to fail on probation and then they're going to end up in prison. It really starts a cycle of failure and criminality."

- Two school districts accused of violating new truancy law.

Two Texas school districts are not following a new law designed to reduce the number of students who end up in truancy courts, an alliance of advocacy groups claimed on Monday.

In complaints filed with the Texas Education Agency, Disability Rights Texas, Texas Appleseed and the National Center for Youth Law accused the El Paso and Mesquite independent school districts of violating provisions of House Bill 2398, a measure designed to decriminalize multiple absences and encourage schools to intervene before court action is taken.

Under the new law, school districts are no longer able to send students with three unexcused absences within a four-week period to truancy courts. School officials must instead notify parents of the absences and warn them of the penalties, which include a fine or loss of driving privileges if the student acquires more absences. A criminal complaint against the parents may eventually be filed as well.

The bill also requires public schools to implement truancy prevention programs and develop new methods of punishing students are punished after multiple absences. It also mandates that parents and educators have face-to-face meetings, and that students be enrolled in a truancy prevention program.

From the Texas Tribune: Rick Perry's Criminal Case Officially Dismissed

It would be worth analyzing patterns in what types of cases they dismiss and what types of cases they don't. Does it matter who is accused?

- Click here for the article.

The criminal case against former Gov.Rick Perry was officially dismissed on Wednesday, weeks after Texas' highest criminal court ordered that it be dropped.

Judge Bert Richardson, who presided over the case in Travis County and now serves on the Texas Court of Criminal Appeals, signed an order dismissing the abuse of power indictment related to a 2013 veto threat.

The case against the longest-serving governor in Texas history centered on a threat to veto $7.5 million in state funds for the public integrity unit of the Travis County district attorney's office, and questions about whether he abused his authority — allegations that he had called a "baseless political attack." The unit was charged with investigating and prosecuting state corruption.

After Travis County District Attorney Rosemary Lehmberg was arrested and pleaded guilty to driving while intoxicated in 2013, Perry threatened to veto state funding for the integrity unit unless she first resigned. She refused to step down, and Perry vetoed the funding. 

Perry and his lawyers successfully argued that he was acting within the powers of a governor and did nothing criminal.

. . . Michael McCrum, the special prosecutor in the case, said he still believed that Perry committed a crime — and had drafted and printed copies of a motion for an amended indictment. But on Tuesday afternoon, he decided to halt the effort, saying the high court's ruling had "muddied" the criminal statute at issue.

“It was our position, and our feeling that the law had been so muddied that it was not the just thing to do with any citizen," he said.

From Ballotpedia: The Texas Court of Criminal Appeals.

From the Austin American Statesman: Appeals court dismisses Rick Perry’s criminal case

This and an interesting series of events. I'll add links to relevant items later. 2306 students should note that the court refers to the state's separation of powers provision - we read through Article 2 of the Texas Constitution in class today - it didn't take long.

- Click here for the article

The state’s top criminal court on Wednesday threw out the remaining criminal charge against Rick Perry, sparing the former governor from trial and a potential prison sentence on a felony charge of misusing the power of his office.

The charge, related to Perry’s 2013 threat to veto money for Travis County prosecutors in an attempt to force District Attorney Rosemary Lehmberg from office, violated the Texas Constitution’s separation of powers provision by improperly limiting the governor’s veto authority, the Court of Criminal Appeals said in a 6-2 ruling.

“The constitution does not purport to impose any restriction on the veto power based on the reason for the veto, and it does not purport to allow any other substantive limitations to be placed on the use of a veto,” said the opinion by Presiding Judge Sharon Keller.
The state’s highest criminal court ordered the remaining criminal charge against Rick Perry to be dropped Wednesday.

“The governor’s power to exercise a veto may not be circumscribed by the Legislature, by the courts, or by district attorneys,” Keller wrote. “When the only act that is being prosecuted is a veto, then the prosecution itself violates separation of powers.”

The court also spared Perry from a second felony charge of coercion of a public official, ruling that a lower court correctly tossed out the law last summer as unconstitutionally vague and a violation of free speech rights.

Wednesday’s ruling brought an abrupt end to the politically charged legal troubles that have dogged Perry for 18 months, looming over the closing months of his 14 years in office and casting a pall over his second unsuccessful run for president.

Ballotpedia provides info on the court and who is on it.

- Click here for it.

As opposed to the Texas Supreme Court - where 7 out of 9 justices were appointed by Perry, only one of the judges on the CCA was appointed by him. I did not check to see if she recused herself.

Texas Court of Criminal Appeals Rules that Drawing DWI suspect blood without warrant unconstitutional

I had a hunch this would happen sooner or later.

This puts a damper on no refusal weekends, when the police could force someone they pull over to give blood to determine alcohol levels on the grounds that it enhanced public safety. But questions about its constitutionality - based on either the Texas or US Constitutions - remained. Here's a defense attorney's take on the issue.

Now they need a warrant.

Here's a bit from the Chron:

"We hold that a nonconsensual search of a DWI suspect's blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment," Judge Elsa Alcala of the Texas Court of Criminal Appeals wrote on behalf of the five majority opinion judges. Four members of the nine-judge court dissented.

The ruling stems from the 2012 case of David Villarreal, who was pulled over in Nueces County for a traffic violation. After refusing to perform sobriety tests in the field, Villarreal was arrested and taken to a local hospital to have his blood drawn against his will and without a warrant. The arresting officer said the move was legal because state law requires the taking of a breath or blood sample of anyone previously convicted two or more times of driving while intoxicated.

And a few other sources:

- Court records related to the case.
- ScotusBlog: Missouri v. McNeely.
- Tex. Transp. Code § 724.012.
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Texas Forensic Science Commission finds that the Department of Public Safety crime lab fabricated evidence against drug offenders. The Court of Criminal Appeals is expected to reverse the convictions.

The story is in myhighplains.com, among other places.

Since the criminal justice system in the state is decentralized, each affected county is responding to this in different ways:

Each district attorney may handle the situation as he or she chooses. Fort Bend County District Attorney John Healy told the Houston Chronicle that he was waiting for retesting of cases by DPS before alerting defendants and their lawyers.

Jack Roady, the district attorney in Galveston County, said he looked at each case and dismissed every one in which evidence had been destroyed or possibly "tainted by Salvador's involvement." Of the 700 convictions in this category, he said he focused on the 26 cases in which the defendant was still in prison.

In Harris County, Sara Kinney, a spokeswoman for the district attorney, said all pending cases connected to Salvador's work were dismissed. "Now we will just review, case by case, any writ we get as a result of that problem," she said.

Bob Wicoff, who heads the appellate division of the Harris County Public Defender's Office, said that his staff is beginning to file appeals, "armed with the Galveston cases," for some of the more than 400 Harris County cases that involved Salvador's work. He said that just four Houston defendants whose cases were handled by Salvador remain in prison; Harris County was less affected because it relies on a range of labs, not just the one where Salvador worked.

The story provides a link to the appelate court's ruling on a case involving a man sentenced to serve 32 years on a fabricated charge.

While the tests were the result of one employee, the report from the forensic commission finds that the DPS had a culture that tolerated such work, so the blame is being spread around.

The DPS employee responsible for the misconduct, Jonathan Salvador, has been the subject of an investigation by the Texas Forensic Science Commission. At the commission's last meeting in January, Nizam Peerwani, a member of the committee and the chief medical examiner for Tarrant County, said that Salvador was part of an office culture that "tolerated under-performance." Commissioner Sarah Kerrigan said that after multiple interviews with Salvador's colleagues, the commission concluded that his work was "marginal" and of "low quality."

Salvador, who could not be reached for comment, was suspended from his duties as a forensic scientist with DPS in February 2012, when the department discovered problems with his work, including the falsification of results in numerous cases involving marijuana, cocaine, heroine, pharmaceuticals and other controlled substances. Salvador had worked on 4,900 drug cases in 30 counties since he took the job in 2006, DPS spokesman Tom Vinger said.

After an internal investigation by DPS and the Texas Rangers, Salvador was brought before a Harris County grand jury in May 2012, which chose not to indict him. In August, he resigned from DPS.

"The department implemented more stringent quality control measures to help prevent similar issues in the future," Vinger said, adding that the department continues "to provide assistance in cases worked by this former employee, including re-examining evidence when requested."

DPS Laboratory Manager Keith Gibson also sent a letter to district attorneys around the state with a list of nearly 5,000 convictions that could've been affected by Salvador's work.

The Texas Court of Criminal Appeals and the birth of popular cuss words

Warning to squeamish students - these links are about the development of a very popular 12 word long cussword - so be warned if you click on them. According to the writer of this Slate article (mentioned by The Dish), the word in question was first mentioned officially in a case from the Texas Court of Criminal Appeals in 1898. Just in case you weren't sure if th Texas courts weren't good for anything.

The case was Levy v. State.

The case - an entertaining one - involves a crime of passion. A bit fitting since we've mentioned a couple others in class.

The Right to Competent Counsel

Just after we discussed the right to counsel in 2301 comes this story from the Chronicle:

Texas, which executes more convicts than any other state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office. It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lacks a public defender to oversee key death row appeals known as state writs of habeas corpus.

Judicial Misconduct in Texas

Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, is in trouble:

Seventeen months ago, lawyers for a man facing execution sought extra time to file a last-minute appeal. Judge Keller refused to delay the closing of her clerk’s office past 5 p.m., even though late filings are common on the day of a scheduled execution. The man, Michael Richard, was put to death by lethal injection a few hours later.

Based on that case, the State Commission on Judicial Conduct last month charged Judge Keller with incompetence, violating her duties and casting public discredit on the judiciary. Judge Keller, who has been the chief judge of the Texas Court of Criminal Appeals since 2000, faces a public trial and could be forced off the bench.

Her lawyer insists that she did nothing wrong and that she was being blamed for the mistakes of the defendant’s lawyers and court staff.

Some links:
- Sharon Keller's website.
- State Commission on Judicial Misconduct.
- The Chron details efforts to prevent similar problems in the future.
- Rick Casey's commentary.

TCC

This is a bit late for our discussion of the courts, but Grits for Breakfast tells us the Texas Court of Criminal Appeals has OK'ed the practice of police giving drugs to potential informants to convince them to snitch.