A Texas Trial Judge Cannot Rule Pretrial that Appellate Delay Makes Seeking the Death Penalty Unfair.

Texas's Court of Criminal Appeals has overruled a trial judge who stated that a capital defendant on retrial could not receive due process after being in the appellate system for approximately 30 years. Judge Cathy Cochran wrote the opinion for the majority which, along with her consisted of Presiding Judge Sharon Keller and Judges Paul Womack, Cheryl Johnson, and Elsa Alcala. Judge Michael E. Keasler wrote a concurring opinion in which he was joined by Judges Laurence E. Meyers and Barbara Parker Hervey. Judge Tom Price dissented.
Longtime Dallas judge John Creuzot made a pretrial ruling that the State of Texas, represented by the District Attorney Craig Watkins's office, could not seek the death penalty against defendant Jonathan Bruce Reed in his current retrial because the passage of approximately 30 years had rendered some of his punishment mitigation evidence unavailable. The State filed writs of mandamus and prohibition to undo Cruezot's actions. The Court of Criminal Appeals majority held that the State had no remedy at law and that the trial judge had a ministerial duty to not make such a ruling for the following reasons:

• There is no authority that Judge Creuzot has the power to make such a ruling pretrial;
• The United States Supreme Court has not recognized a claim like Reed's;
• The thirty years' delay worked in Reed's advantage-- when he was first tried SCOTUS had not changed the law so as to provide a legal basis for his claims;
• Although he may have lost mitigation evidence from his youth, the evidence of his behavior during his 30 years of incarceration will be fresh, better evidence than he would have had before;
• The harm of the delay challenges the State-- it has the burden of proof;
• Reed's complaint about the evidence is not yet ripe-- he might be acquitted; his mitigation evidence might be sufficient to save his life-- all his injury is hypothetical;
• SCOTUS says that problems from delay must be shown at a trial;
• The delay is not the State's fault-- it should not be punished for a delay it had no hand in.

Judge Keasler's opinion would be narrower. It would reach the same conclusion as the majority, but based only on the majority's last reason-- the State shouldn't be prejudiced for something that is not it's fault.
Judge Price did not think that it was categorically impossible that a prejudicial degradation of evidence caused by delay could not be determined pretrial. Therefore,the trial court does not have a ministerial duty to rescind its order-- that is, the State does not have a clear right to the relief it seeks.