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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, July 31, 2011

The Texas Court of Criminal Appeals

Texas is one of  only two states-- Oklahoma is the other one-- that has more than one highest court. In addition to the Texas Supreme Court-- the highest court for civil matters, including juvenile cases-- the Texas Court of Criminal Appeals is the highest Texas court for criminal matters. Like the Texas Supreme Court, it has nine members, though it only had eight recently when an appointment to the court was delayed as an economy measure. Supreme Court members are called justices while the members of the CCA are only called judges.
Led by Presiding Judge Sharon Keller, a Dallas real estate heiress infamous for closing the court on an execution evening. The rest of the court is nondescript. Judge Tom Price, for example, claims on the CCA website to be only the third person from Dallas ever on the court. The Court made news a few years ago when it refused to grant a new trial to Jose Medellin, murderer of a pair of teenage girls in Houston even though the International Court of Justice had ruled in Medellin's favor.
All death penalty cases in Texas are automatically appealed to the Court of Criminal Appeals.

Saturday, July 23, 2011

The Texas Supreme Court

Texas's highest court, which only hears civil cases, consists of a Chief Justice and eight justices, each elected statewide for a six-year term. Since juvenile cases are civil cases, the Texas Supreme Court hears them, too. The Court chooses the cases it wants to hear, so they generally choose the ones they want to reverse. Presently all of the Justices are Republicans. The most common way to get on this bench as a practical matter is to get appointed by the governor with the approval of the State Senate to fill an unfinished term of an exiting justice.
This Court is extremely likely to reverse plaintiffs' judgments, and are more sensitive to the faults of  Democrat Court-of-Appeal justices than of their fellow Republicans, which is bad news for the blue Supreme Judicial Districts numbered Eight-- El Paso--and Thirteen--Corpus Christi/Edinburg.
Chief Justice Wallace B. Jefferson is the first African-American Chief Justice of Texas and the first African-American Justice of the Texas Supreme Court. Justice Nathan L. Hecht is a clever writer-- the kind of guy who would quote Shakespeare in an opinion. Formerly linked romantically with high-powered white-shoe Dallas lawyer, former White House Counsel and United States Supreme Court nominee Harriet Miers, Hecht beat ethics charges against him that arose when he gave interviews and made political phone calls on behalf of Miers. Dale Wainwright was a civil district judge in Houston. I remember seeing him at our local Fuddrucker's as he was bringing some kind of little league team he was a coach of out to supper. David Medina is also from Houston. I remember when he was a trial judge-- I lost a case in his court because of some pointless and impossible-to-satisfy rule about how he wanted papers presented to him, though I've got to give him credit, when I told him the story years later, he had the conscience to wince when he heard it. He was indicted for arson and altering documents, but the charges were dismissed. Justice Paul W. Green was an appeals court judge in San Antonio for ten years before he rose to the higher bench. Phil Johnson was the Chief Justice of the Amarillo Court of Appeals before he rose. Don R. Willett was as plugged in as a Christmas light to the Bush-Cheney administration, though he's got stellar legal credentials, too. Eva Guzman rose from a Houston family court bench to the Fourteenth Court of Appeals in Houston to Texas's highest. Debra Lehrmann is the Court's newest justice, a former Fort Worth family law judge.

Fifth Circuit Allows Warrantless Use of Slap-On GPS Tracker.

A Fifth Circuit panel of Chief Judge Edith Jones, and Circuit Judges Patrick Higginbotham, and Leslie Southwick held that a borrower of a truck has "standing" to challenge the use of a slap-on tracker which sent out an intermittent signal accurate to 50 yards on that truck, but not to challenge the placement of the tracker on the truck. The Court's reasoning in this case, United States v. Jose Juan Hernandez, was that the truck was not his and  that it was parked on a public street. He did not have a reasonable expectation of privacy that was violated by putting the tracker on the truck. Chief Judge Edith Jones's opinion contrasted the facts of this case with the facts United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted sub nom, United States v. Antoine Jones, No. 1259 (April 15, 2011) in which the GPS device continuously monitored a suspect for a month, which the D.C. Circuit found to be an illegal warrantless search. The Hernandez  court appeared to think that Maynard is the only federal case which threw out a case on the ground that GPS tracking was an illegal search. The Hernandez device operated gave off pings on a regular basis. The government's agents found out how Hernandez had begun his drug delivery run, but after that, the battery in the device failed, and the agents tracked him the rest of the time by visual surveillance.
That the Supreme Court of the United States voted to hear Maynard/Jones makes me think it likely that the conservative wing of the court did not like the circuit opinion and wants to reverse it.
Hat tip to the weekly case summary of the Texas District and County Attorneys' Association.

Saturday, July 16, 2011

The Supreme Court of the United States

The Supreme Court of the United States is the highest court in America. It has nine justices appointed on good behavior by the President and confirmed by the Senate. It has original jurisdiction over disputes involving 
ambassadors, other public ministers and consuls, and those in which a state shall be a party. It has appellate jurisdiction over the decisions of the United States Courts of Appeals and the highest courts of each state. In these appellate cases, the Supremes only hear those that four of their number agree to hear. It should be no surprise that those justices have an idea, at that point, how they think a case should turn out. It is not uncommon that in SCOTUS very often one side is fighting from the very high ground, while the other has very little chance of victory.
It is very difficult to get a case heard by the Supreme Court. Thousands apply, but only about 150 are taken up. The mission of the Supreme Court is less to correct errors in individual cases, than it is to resolve differences in legal interpretation made by the various federal courts of appeals and highest state courts. Note also that the U.S. Supreme Court has no authority to change law which is pure state law; they only have the authority to change federal law (State courts are, to the extent federal law impinges on their decisions, bound by the decisions of the United States Supreme Court.).
Pretty much since the Nixon administration-- it also happened at the beginning of FDR's administration-- the Supreme Court has been divided between a conservative wing and a left wing.  Presently, the conservatives are Chief Justice of the United States (not Chief Justice of the Supreme Court)  John G. Roberts, Jr., Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr. Justice Anthony Kennedy generally votes with the conservatives, but is generally the most left of the conservative justices and so is the swing vote on the Court. To the left are Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Notice that the death or retirement of a single justice could well swing the balance of power in the court to the left.

Summary Judgment Attorney's Fee Awards Must Be Supported by Some Facts in East Texas

The Ninth Court of Appeals in Beaumont, Texas through a panel of Justices David Gaultney, Charles Kreger, and Hollis Horton held in a memorandum opinion that the evidence of attorney's fees in a collections case was insufficient to support a grant of summary judgment as to those fees. The attorney's fee affidavit in that case failed to state any hourly rate, or amount of time spent working on the case or any other specific facts behind the fee.Summary Judgments in Texas: Practice, Procedure, and Review

Friday, July 8, 2011

Should You Ask for Oral Argument?

Generally, one should ask for oral argument if the appellate relief one is asking for is out-of-the-ordinary, that is, if it requires the court to take action it would rarely take. For example, appellants asking the appellate court to overrule a trial judgment should generally ask for oral argument. Why? Because appellate courts rarely overrule trial judgments, and appellant's counsel should try to get the case away from being solely considered by staff attorneys and law clerks and bring the case to an appellate justice's attention. A justice is much more likely to lead the court to do something unusual than a lowly court employee. In this example, appellees should generally try to avoid oral argument. To show how far some appellees take this avoidance, for a long time, appellate prosecutors in Houston would not show up for oral argument where the State was an appellee.
A football coach, famous for letting his quarterback run rather than pass observed that when a player passed the ball, there were three possible results (incompletion, interception, completion), and two of them were bad (incompletion and interception). Appellees' counsel feel the same way; oral argument may lose a case for them, but it is unlikely to win one for them.
Similarly, counsel asking for extraordinary relief such as mandamus or habeas corpus relief should ask for oral argument to explain why their particular case is the one for which unusual action should be taken.

Wednesday, July 6, 2011

Minnesota and Texas Have "Roach Motel" Sexually Violent Predator Programs

In 1981, the Black Flag Roach Motel was introduced. "Roaches check in, but they don't check out."
The Duluth News Tribune reports that of all the states that have civil commitment of sexually violent predators, Minnesota is the only one that has never released anyone from civil commitment. This is not quite true; Texas has never released anybody either. The story seems to envision committed sexually violent predators "mov[ing] . . . through the community." Except to go to doctor's and dentist's appointments, it's extremely difficult for them to do anything but hang out at the halfway house. The story says that Washington state's program- generally, the model program- was held to be unconstitutional ten years ago. What was needed to make it constitutional was real treatment structured so that SVPs could earn their freedom. Texas doesn't meet that standard.