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Saturday, March 21, 2015

Three of Us Dissent, But We Generally All Agree about What to Do with the Appellee

In today's case, judges on Texas's Court of Criminal Appeals divide on the result in a case and also the reasons the lower court should be reversed or affirmed. This case arises out of a scandal in the Beaumont Police Department. Eric Heilman and Brad Beaulieu were accused of altering facts and leaving out details from statements and subsequent testimony related to a 2008 drug bust, such that the case against the defendant was dismissed. Following Heilman's guilty-plea placement on deferred adjudication for misdemeanor tampering with a governmental record, completion of deferred adjudication probation, and dismissal of the charge, he sought writ of habeas corpus, got relief, and the State appealed. Beaumont's Court of Appeals affirmed, and the State petitioned for discretionary review.
See, the deal that he made was that he agreed to waive the statute of limitations so he could take a misdemeanor instead of a felony.
But is that legal? Can a defendant waive the protection of limitations? Doesn't a court attempting an out-of-limitations plea deal lack jurisdiction to act?
This question sent the CCA judges shooting off in four different directions.
A lesson I draw from this case is that an advocate should not follow precedent, particularly in the CCA as if one were a blindered mule. Heilman-- a confessed crooked cop-- gets a sweet plea deal (I try to remember a sweeter one than this that I was in any way involved in. In my 24 years of experience, only one comes to mind.), but then-- Backsies!-- he gets to undo even that so he can hang on to his peace-officer license. The foul stench of this outcome got some CCA judges and their staff attorneys to hit the legal databases and see how this deal could be undone.
Judge Michael Keasler wrote for the majority including Presiding Judge Keller, Judges Hervey, Richardson, Yeary and Newell. Heilman's argument had been that a limitations bar could not be waived by a defendant. The majority disagreed, though admitting that Heilman's argument was supported by Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App.-- 2011). Nobody would want the legislative process to make actions done before a law was made criminal offenses, and those are the kinds of laws that there should not be a need to complain about before they are enforced. Does that mean, though, that where the statute is not of that type, a defendant shouldn't be able, knowingly and voluntarily to waive the benefit of limitations in exchange for some other benefit so the majority said that Phillips did not apply in this case.
Judge David Newell concurred, joined by the Presiding Judge and Judge Hervey, that Phillips conflicted with the instant case, and that the Court should frankly overrule Phillips instead of pussy-footing around.
Judge Lawrence E. Meyers dissented. The problem, he said, is not Phillips, but Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App.-- 1998) which made limitations a defensive issue (putting the burden of proof on the defendant) and not an element of any offense. 
Judge Cheryl Johnson dissented. She said that Heilman had the power to waive limitations under present law-- there was a quid pro quo: defendant's waiver of limitations as to misdemeanors was traded for the State's not charging him with a non-limitations barred felony. She also got in the best sentence of this whole festshrift: "Heilman might have chutzpah, but he does not have a valid limitations claim."
Judge Elsa Alcala dissented, also, arguing that the only law that needed to be overruled for this case to get a proper result would be Phillips's holding that limitations deprive a trial court of jurisdiction.
For all these opinions, there are really very few differences in the outcome of the case suggested. The CCA has overruled the jurisdiction ruling in favor of Heilman and sent his other issues back to Beaumont. Though Judge Meyers calls his opinion a dissent, it appears to me that the actual disposition of Heilman's case he advocates for is hard to distinguish from the majority's. Same for Judge Johnson's and Judge Alcala's. I thought that an opinion that had the same result in one case as another, even though the reasons conflicted, were concurrences.
Ex parte Eric Michael Heilman, (No. PD-1591-13, Tex. Crim. App.-- March 18, 2015) (orig. proceeding)

Sunday, March 8, 2015

Practical Advice for Keeping Records of Your Records of Your Past Trials and Appeals

When I first started keeping records of my trials and appeals, I used Bluebook and Greenbook citation rules to format my records, but looking for work, prospective employers often wanted to know things I didn't have recorded- the given names of my clients and adversary parties, the exact dates cases were decided. Keep your records in a master list that includes those pieces of information and the results of the matters, so you don't have to remake the list a couple of times, as I have had to.

Saturday, February 28, 2015

Federal Court of Appeals Decisions without a Trial Court Judgment

There are very few exceptions to the general rule that you cannot have an appeal without a prior trial court dispute. 
One apparent exception is that the Supreme Court of the United States is not merely an appellate court. The United States Constitution says in Article III, Section 2 in the second paragraph says that "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction." In these cases, the Supreme Court commonly appoints a master to take the facts in a case and then renders a legal decision on those facts. thought it need not according to Supreme Court Rule 17 and other law.
In order to understand the one ordinary exception to this rule, you have to understand the difference between courts that are created under Article III of the United States Constitution, the main ones being the Supreme Court of the United States, the United States Courts of Appeals and the United States District Courts and non-Article III tribunals. Article III courts are the courts which are the models for America's judicial independence. The judges' pay cannot be reduced during their time in office and Article III judges cannot be removed except by impeachment of the House of Representatives and conviction by two-thirds of the Senate. Non-Article III judges lack these protections- they are chosen for fixed terms and are easier to remove. Non-Article III courts are generally decision-making bodies for specialized agencies, for example, United States Citizenship and Immigration Services, or the Environment Protection Agency. Federal statutes often provide that the final administrative decisions of such bodies may receive their first Article III proceeding in a court of appeals instead of a district court. E.g. Commodity Futures Trading Commission v. Schor,  478 U.S. 833 (1986)

Thursday, February 19, 2015

The Texas Supreme Court Changes a Common-Law Rule

In the beginning was Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974) holding that evidence of use or nonuse of seat belts would not affect plaintiffs' recovery in auto negligence suits.  Eleven years later the legislature enacted a law that evidence of use or nonuse of seat belts was not admissible in a civil trial, then swept that pro-plaintiff rule away in 2003. So the Carnation rule sprung up again, but the Texas Supremes reverse it now, arguing that the rule was to protect plaintiffs from the old rule that any responsibility of the plaintiff would cause the plaintiff a total loss. Now that rule is gone, and seat belts are required by law. Justice Jeff  Brown wrote for a unanimous court.  Well Services v. Romero, No. 13-0136 (Tex. Feb. 13, 2015)

Wednesday, January 28, 2015

Can't slap attorney's fees on an indigent criminal defendant

Clifton James Taylor was found to be indigent at the beginning of his case and was lucky enough to get Judith Shields, a doughy criminal defense fighter from Conroe. Taylor pleaded guilty to third degree felony assault against a family member and went to the judge for punishment. Among the penalties the judge rendered was attorney's fees. Shields took this up on appeal along with another issue. Justice Leanne Johnson wrote for a panel including Chief Justice Steve McKeithen and Justice Hollis Horton removing the attorney's fees. Credit should be given to the Montgomery County District Attorney's Office for graciously conceding this point before the opinion was rendered.
Taylor was found indigent at the beginning of the trial court case. No one alleged that his indigent condition had changed during the course of the proceedings so the law of the case at the end of the trial was that he was indigent, and that therefore charging his attorney's fees was inappropriate.
Criminal defense lawyers, check for this in your judgments and know at least one case to cite before your trial judge and the State.
Taylor v. State, No. 09-14-00039-CR  (Tex. App.-- Beaumont Jan. 28, 2015, no pet. h.) (mem. op.) available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9cfac722-1afc-4640-854d-3e4affb5a49d&MediaID=f537d09f-36e3-4448-8e1c-55ee9a0921b3&coa=%22%20+%20this.CurrentWebState.CurrentCourt%20+%20@%22&DT=Opinion

Saturday, January 24, 2015

Many Texas Injunction Cases Can Result in Three Appeals Each.

The law recognizes that some bad acts are irreversible and provides the remedy of a temporary restraining order. Temporary restraining orders can be entered without notice to the restrained parties. Such a powerful procedure can be abused, which is why temporary restraining orders can be appealed. One of the rules of temporary restraining orders is that a TRO has a short period of validity and must be followed quickly by a hearing with all parties present, which may result in a temporary injunction until a real trial can get to its turn on the docket. The temporary injunction can be appealed, too. If there is a permanent injunction, as is common, the judgment in that case is final, and, therefore, appealable.

Wednesday, January 21, 2015

Federal Habeas Applicant May Have New Habeas Counsel instead of the Habeas Lawyers Who Missed His Application Deadline.

I like practicing post-judgment law because there are very few unremediable errors. In seeking federal habeas corpus relief from a criminal conviction one irredeemable error is to file the application after the one-year deadline of the Antiterrorism and Effective Death Penalty Act.
You can seek federal habeas relief from a state or federal conviction. Calculating exactly what the deadline is is very technical. Basically, the AEDPA clock does not run when a conviction is not final because of rights of appeal.
Let's start with a state conviction. If the state offers an appeal, an impoverished defendant must be offered an appeal with an appointed lawyer at no charge to the defendant, not even for the clerk's record and the trial transcript. 40 of America's 50 states have at least one court of appeals intermediate between the trial court and the state's highest court.  In those states, the convict has a right to an appeal to one of those intermediate courts at no cost to the convict, but not to the state's highest court. In the other ten states, the appeal you get is to the highest court. Every state offers state habeas relief, It is nearly always wise, for strategic reasons, to seek your habeas writ after you have exhausted your appeals. The most common example of a reason to seek your writ after you've exhausted your appeal remedies is that you generally can't complain of ineffective assistance of counsel on appeal, but you can on a writ application. Now, if you're seeking relief from a state sentence, you can't get federal relief like this unless you have exhausted all of your state remedies. While your state habeas application, is pending, the AEDPA clock is not running. But when you are not open for appellate relief or writ relief, the clock does run, and if you don't file your federal writ application within that year, it is highly likely lost forever.
A federal sentence is easier. Because federal authority outranks state authority, there are no state remedies remedies to exhaust. The AEDPA clock only starts to run after there is no appellate power-- it's all federal authority. Like for the state conviction, wait more than your one year to apply for your federal writ, and it will almost surely be lost.
The Supreme Court of the United States decided yesterday that a death-penalty defendant whose appointed habeas counsel waited too long to file his federal writ application did not have to keep them while they tried to get around their mistake and get a late appeal. He had a right to have them dismissed and replaced with other federal appellate counsel who would not have the conflict of interest in having to defend their own error while trying to get it excused.
Justice Alito dissented, joined by Justice Thomas. They argued that their court should have decided whether or not it was possible to toll (that is, avoid) the deadline. If the deadline could not be tolled, it would not matter if the defendant got new counsel or not.
Christeson v. Roper, 574 U.S. ___, No. 14-6873 (Jan. 20, 2015)  (Roberts, C.J.,  Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, JJ.) (per curiam)