The Fourth Time Is Not the Charm or; Gibberish Is Bad

Even Homer nods. Faulkner once described a building in one passage as made of stone, in another passage of the same work as wood. If you have to rewrite a legal document, the rewritten document should be better than the one before, unlike poor Walter Maksym, who was asked to rewrite his complaint twice and who has been threatened with removal from the bar of the Seventh Circuit for the incomprehensibility of his appellate brief.

No Written Interrogatories of Texas Child Sex Abuse Victims

     The Texas Court of Criminal Appeals held that the videotape procedures set out in Article 38.071, § 2 of the Texas Code of Criminal Procedure, including the use of written interrogatories in lieu of live testimony and cross-examination do not satisfy the Sixth Amendment rights of confrontation and cross-examination under the United States’ Supreme Court’s Crawford v. Washington line of cases. Judge Cochran wrote the majority opinion that Judges Price, Womack, Johnson and Alcala joined. Judge Hervey filed an opinion which Judge Keasler joined, stating that closed-circuit television—with live, contemporaneous, cross-examination—would have been acceptable, had it been used in this case. Presiding Judge Keller filed a dissenting opinion, arguing that on these facts Crawford v. Washington and its progeny did not overrule the initial case—Maryland v. Craig—which allowed one-way, closed-circuit television testimony of child witnesses in certain situations. This case, she suggested, qualified for Maryland v. Craig treatment. Judge Meyers dissented without opinio

       They didn’t want to overturn the Seventh Court of Appeals, but SCOTUS would have overturned this case if it had gotten it.
      Hat tip to the Texas District and County Attorneys' Association.

Changes in the Rules that Apply in Texas's Court of Criminal Appeals

• Effective September 1, 2011, all Petitions for Discretionary Review and all copies of the petition must be filed with the Clerk of the Court of Criminal Appeals. See TRAP Rule 68.3.
  
  Effective September 1, 2011, the opposing party has 15 days in which to file a reply to the petition with the Clerk of the Court of Criminal Appeals. See TRAP Rule 68.9.
  
  Effective September 1, 2011, the "Writ of Habeas Corpus Application Art. 11.07 form has been revised. The revised form can be found on the "Forms" link.
  
  See MISC DOCKET 11-004 [pdf] This rule supersedes Misc Docket 11-002
• New  Effective June 30, 2011, the Procedures in Death Penalty Cases involving request for Stay of Execution and related filings in Texas State and Trial Courts and the Court of Criminal Appeals has been revised.
  
  See MISC DOCKET 11-003 [pdf]. This rule supersedes Misc Docket 08-101.

The death penalty stay rule should be called The Empire Strikes Back rule. See Presiding Judge Keller breathing heavily, mechanically, "Your powers are weak, David Dow. You can't win. Though you strike me down, I shall become more powerful than you could possibly imagine." The sanctions for counsel who ignore or fail to satisfactorily meet the rule include, but are not limited to referral to the Chief Disciplinary Counsel of the State Bar of Texas, contempt of court, removal from the list of  Tex. Code Crim. Proc. Art. 11.071 list of attorneys, restitution of costs incurred by the opposing party and any other sanction allowed by law (e.g. Texas Rule of  Civil Procedure  215.2).

Defendants' Rights to Appointed Counsel

In Gideon v. Wainwright, 372 U.S. 335 (1963) the United States Supreme Court ruled that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case that could result in incarceration. The same rule applies in criminal contempt proceedings other than summary proceedings under United States v. Dixon, 509 U.S. 688 (1993).
As to appeals, the rules are more complicated. First, there is no federal constitutional rule that appeals be allowed in state courts at all. If appeals are allowed, though, criminal defendants threatened with or subjected to incarceration have a right to state-appointed appellate counsel on their first appeal of right.
My last blog post was an analysis of a June case of the Supreme Court of the United States as to a civil contemnor's right to appointed counsel. Later on, I'll discuss the law of appointed counsel in civil matters.

United States Supreme Court Establishes Protections for Child Support Civil Contemnors

In this child support collection case, Daddy--without a lawyer--was sued by Mamma--without a lawyer. In a civil contempt hearing, the judge found Daddy in willful contempt and sentenced him to 12 months in prison without making any finding as to his ability to pay or indicating on the contempt order form whether he was able to make support payments. After he served his sentence, the South Carolina Supreme Court rejected his claim to a right to counsel.
The United States Supreme Court has held that the Sixth Amendment to the United States Constitution requires that an indigent defendant get an appointed lawyer for a criminal case in which the defendant is at risk of incarceration. The Sixth Amendment does not govern civil cases.
The Due Process Clause requires that an alleged civil contemnor receive:

• adequate notice of the importance of the ability to pay in order to be held in civil contempt;
• fair opportunity to present relevant information;
• fair opportunity to dispute relevant information; and
• court findings.

Change in Texas Supreme Court Practice

Effective September 12, 2011, all attorneys are required to file all documents with the Texas Supreme Court through the Texas.gov electronic filing system. To use the electronic filing system you must first choose an electronic filing service provider and register. Be alert.