In re United States Supreme Court Justice Ruth Bader Ginsburg

Keeping up with news about United States Supreme Court justices, these tidbits about Ruth Bader Ginsburg were enlightening and humorous.

Dangers of an Anders Brief

The appointed appellate defense lawyer  for D'Kemaan West(What a great name!) in the appeal of his conviction, couldn't find any error in West's trial, so that attorney filed an Anders brief, and the Nines let Mr. West himself file a pro se brief. Somebody- not the appointed appellate lawyer-- found that the trial judge had written a fine into the judgment that the judge had not imposed in the oral rendition.  The court of appeals reformed the judgment to avoid the offending fine, and called it a day. I wrote in February about four cases where the Ninth had found problems with attorneys' fees or fines. The lesson, my learned friends, is that you must be very careful before filing an Anders brief, because if you file one and you have missed some error you will end up mortified. I have only filed one, and it has not yet come back to bite me.
West v. State, No. 09-12-00375-CR, (Tex. App--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.)

If They Don't Prove the Proper Enhancement Convictions, They Don't Get the Enhancement

The case today is Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.) written by Justice Charles Kreger for a panel including Chief Justice Steve McKeithen and Justice David Gaultney. Como was indicted for aggravated robbery and pleaded to a lesser-included offense of robbery. His punishment was enhanced by a state jail felony- possession of a controlled substance. There were other felony convictions higher than a state jail felony in his indictment, but in his plea before the bench, none of them were proved. The judge gave him deferred adjudication. Later Como pleaded true to two violations of his probation. The judge revoked his probation, found him guilty of robbery and sentenced him to a whopping 85 years.
Como said that the judge had not properly admonished him when he gave him deferred ("I never would have agreed to deferred if I knew I could get 85 years!). The State even agreed that the admonishments had been insufficient. Still, that complaint came too late. You're supposed to complain about that when you get deferred, not when you're up to be adjudicated.
But you can't get 85 years on a mere robbery-- a second degree felony whose longest possible sentence is normally 20 years-- unless you get enhanced. A single state jail felony conviction isn't enough to enhance anything. So the sentence is too long for the proof, and the appeals court remanded the case back to the trial court for a new punishment hearing. Now this new punishment hearing will almost certainly have a very similar result, because everybody knows that there are enough high felonies to enhance Como's robbery conviction, so that he would liable for a sentence like 85 years, Everybody knows this because they were listed on his indictment, but the appeals court is not going to render a new judgment, almost certainly because evidence will have to be taken to prove the enhancements that were not proved the first time. And appeals courts are not in the business of taking evidence
Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.).

Where to File Texas State Habeas Corpus Applications

In March 2012 I promised a post about what Texas state courts to file habeas corpus applications in, but I don't seem to have done it yet.

• Civil- Applications for writs of habeas corpus only arise in civil trial courts one of two ways:

1.  When someone is held in contempt of court. Contempts of court may be divided into two types: criminal and civil. Contempt of court is a crime in Texas, and habeas corpus may be sought against a criminal contempt finding, as it may for any other crime. Civil contempt is when judges confine people in order to coerce them to follow a court order. They appear to arise most often in family law matters. Judges may only hold people in civil contempt for a maximum of 18 months.There is no right to appeal a civil contempt order; the only relief is through habeas. In these cases, one may generally apply for habeas through a court of appeals that supervises that trial court. The Texas Supreme Court may also have jurisdiction but in practically all cases it will require a relator to exhaust its court-of-appeals remedy before the Texas Supremes will hear the case.
2. When the writ is sought as to a nongovernmental confinement, most commonly possession of a child contrary to family law rights, though habeas is a civil remedy against any unlawful private confinement, against a kidnapping, enslavement, peonage or the confinement of sex workers, etc. Courts of general jurisdiction may hear these matters: state district courts and most county-courts-at-law. If a relator doesn't like the result there, the relator can apply for a writ first in the court of appeals, then if one needs to go further, to the Texas Supremes. Under a few circumstances, an appeal may lie against a trial court's denial of habeas relief.

• Criminal pre-trial- One must start in one's trial court, and if one wants to go further an application may subsequently be made first the court of appeals, and, if necessary, in the Court of Criminal Appeals.

• Criminal post-conviction- Practically all such applications for State of Texas relief are governed by Texas Code of Criminal Appeals chapter 11, with special provisions for habeas applications relating to people under a death sentence, people seeking relief from community supervision judgments and people imprisoned for non-death offenses. People suffering under imprisonment convictions apply straight to the Texas Court of Criminal Appeals, which has a large group of staff attorneys dealing with  those cases, including old friends of mine formerly with State Counsel for Offenders. Non-death-penalty relators are governed by article 11.07 and has a required form which may be found here. Texas offers all indigent imprisoned convicts appointed counsel on appeal to the courts of appeal, but not to non-death-penalty prisoners, so the vast majority are not done with lawyers, but are done by the convicts themselves. The form is intended to be helpful to them and to ease the court's work. Community supervision relators have to try to reform their conditions in the trial court, then file in the trial court, and they and the State may appeal that decision.

Texas's Highest Criminal Court Holds that Man Has Been Waiting 30 Years for a New Trial

According to a recent decision of the Texas Court of Criminal Appeals, Hartfield v. Thaler, No. AP–76,926 (June 12, 2013) a man has been in prison awaiting a new trial for more than 30 years.
Here's how it happened: Hartfield is convicted of capital murder and sentenced to death in Matagorda County, Texas in June 1977. As all Texas death penalty cases do, his case automatically went up on appeal to Texas's highest criminal court-- the Court of Criminal Appeals. The CCA reversed and remanded for a new trial, because a prospective jury panelist was improperly kept off the jury. The State filed a motion for rehearing which was denied January 26, 1983. The CCA's mandate issued March 4, 1983.
A mandate is a final order of an appeals court in a case. If a case of a court of appeals is taken up by yet a higher court, the mandate in the case comes from the higher court and the court of appeals does not issue one. A mandate is practically always the last word in an appellate matter, though there is such a thing as a motion to recall a mandate. The State did not move to recall the mandate in Hartfield.
Now the governor always had the power to commute Hartfield's sentence from death to life in prison, and doing that was discussed as a way to avoid the retrial, but the governor did not commute (or, more accurately, try to commute) Hartfield's sentence until March 15, 1983. The prison system took this purported commutation and held him under a life sentence.
In 2006, Hartfield, without a lawyer, applied for a writ of habeas corpus with the CCA and was denied. In 2007, he applied for a writ of mandamus with the CCA to force the retrial, which was denied. He applied again for habeas with the CCA, which was held to be a subsequent application for habeas under Code of Criminal Procedure 11.07 section 4 and was, therefore, dismissed. Then, without a lawyer, as he had done all of this 21st century work, he filed for habeas with the United States District Court for the Southern District of Texas. Normally, this would have been a fool's errand because of the one-year habeas deadline of the Antiterrorism and Effective Death Penalty Act, but Southern District held that Hartfield was not being held pursuant to a judgment of a state court. Remember the CCA mandate killed the trial court's judgment and no new judgment had taken its place. Southern District held that his was really an application for a pretrial writ of habeas corpus. Somewhere around this time Hartfield picked up federal public defenders. Hartfield's case was moved to the federal Eastern District of Texas where it decided that Hartfield's claim was no good because he had not exhausted his Speedy Trial Clause claim in state court. At first the United States Court of Appeals for the Fifth Circuit-- Texas's federal appeals court-- affirmed the Eastern District's judgment; I blogged about this before. but then changed its mind and sent a certified question to the CCA asking what the status of the judgment in Hartfield's case really was. That how we got to the CCA's decision two days ago.
Matagorda County's District Attorney Steven Reis is going to retry him. Steve is a law school classmate and hired me to be an assistant district attorney for him back in the day. He will be implacable and relentless, and has been superlatively good at his job for a very long time. The murder that Hartfield committed is remembered as a particularly heinous and horrible crime.
Hartfield and his lawyers have been persistent the last seven years. The background of this case teaches appellate criminal defenders that in our AEDPA world it may take as many as seven proceedings-- most of them losses-- to get a prisoner relief.
Hartfield v. Thaler, No. AP–76,926, (Tex. Crim. App., June 12, 2013)

How Much Power Do Courts Have to Overrule a Federal Agency?

Federal agencies have broad and deep influence over our lives. How far, though, can they go before a court will stop them? The answer is in the rule of the case of Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), written by Associate Justice John Paul Stevens which says:

“First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”

“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather”“[I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.

467 U.S. 637, 842-843 (1984).

In this case, the NRDC had objected to some Environmental Protection Agency regs, having won at trial, Chevron, affected by them, appealed and the case ended up with the Supremes.

United States Supreme Court opinions commonly refer to and use this "Chevron deference."

 Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)

This blog post is adapted from a post on my website. From now on blog posts are going to be here.

This Blog Is Not Moving!

My new web people tell me that what we ought to do is keep this blog here, so that's what we'll do. Sorry about the confusion.