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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.

Monday, January 25, 2016

Hon. Mr. Chris Oldner Fights Being Bullied in Collin County, Where Politics Is Not Beanbag

"Politics ain't beanbag."- Finley Peter Dunne

Before I had started on this post, I had thought that I knew what the six biggest counties in Texas were:

  1. Harris (Houston)
  2. Dallas
  3. Tarrant (Fort Worth)
  4. Bexar (San Antonio)
  5. Travis (Austin)
but I was wrong about the sixth. I thought it would have been El Paso County, but it appears to be Collin County (county seat McKinney, largest city Plano).

And so it is that two of the three of those seeing to take on the newly-turned-Democrat judge Larry Meyers on the Texas Court of Criminal Appeals are judges from the Collin County Courthouse: Messrs. Ray Wheless and Chris Oldner.
Once upon a time there were three friends: Chris Oldner,  Ken Paxton, and Ray Wheless. Oldner was the presiding judge of the 416th Judicial District Court in McKinney, and was the local administrative judge of the county. Paxton had been a state house member, was the state senator and had won the office of the Texas Attorney General in the last election, January 2015. Wheless was the presiding district judge of another Collin County court and Wheless's wife was presiding district judge of yet another Collin County Court. Oldner says that he had discussed running for higher office in 2012, and that Wheless had been supportive. Oldner ended up not running then. Oldner found Wheless running this cycle. Oldner said that Wheless told him that Wheless had already been running for a year by the time that Oldner decided to run. I would take it that the judges' meetings in McKinney are more formal than they used to be.

Paxton's people allege that Oldner is running a half-hearted campaign for a seat on the CCA because with Paxton's people against Oldner, Oldner would likely lose his bench in McKinney and that losing the CCA race would be a graceful exit. Oldner's campaign website is lame compared to his adversaries', and Oldner's campaigning appears leisurely compared to the Energizer Bunny of the Texas GOP, Wheless.

(A note about the EmpowerTexans.com website: I link to it to document the views of  Oldner's adversaries. I don't want to opine about what people think when they have posted on the internet exactly what they think. I want to show what they say, not to vouch for the truth of what they say-- c.f.  Texas Rule of Evidence 801(d)(2). A number of their characterizations of Oldner seem to me to be exaggerated, if not scurrilously unfounded, e.g., that Oldner is "unethical," that he "appears to have violated numerous ethics rules" in "orchestrating" the "outrageous" criminal indictment of . . . Paxton, Empower Texans's Tony McDonald cites the claims in Paxton's defense motions as facts without addressing the prosecution's responses, and nowhere do I see any discussion of the merits of the case against the AG. He makes much of a judicial ethics claim made against Oldner-- an unprepossessing document apparently made by a political ally of Paxton.  A link about a purported eight-year-old financial scandal goes to an anti-illegal-immigration Freedom of Information Act request form list.)
Paxton was indicted for securities fraud about seven months after he had risen to be the attorney general. The grand jury that indicted Paxton was called under the supervision of Oldner. A Texas state grand jury has 18 members, and four alternates. Grand jurors are generally called together to meet from time to time for meetings of a few hours scattered over three months. Oldner told me that for approximately the last five years he has only been choosing grand jurors by starting from a random list of panelists who would appear to be qualified to serve as grand jurors and alternates. The first 18 qualified and able would be the grand jury. The next four qualified and able would be the alternates, and that would be the end of the process. No gamesmanship, hardly any discretion about it.
In short, Oldner had only the very slightest influence on who was on his grand juries.
Other legal rules insulate grand jurors even more from the influence of presiding judges like Oldner.
Generally, grand jury proceedings are supposed to be secret. Although prosecutors help present the evidence, grand jury deliberations are done without any nonmembers present-- prosecutors are not there, presiding judges are absolutely not allowed in- no more than they are allowed to be in with the trial jury when the trial jury deliberates, even the grand jury's bailiff is outside the door, not inside, during deliberations. The grand juries approve and disapprove indictments. A person cannot be prosecuted for felonies and a few other crimes, if the grand jury does not indict, unless the person waives the right to be indicted.
There is no double jeopardy before a grand jury. A grand jury can be asked to reconsider a denial of an indictment, or a matter may be brought up again before another grand jury. A grand jury can investigate matters on its own initiative and can indict people law enforcement did not bring their attention to, even the prosecutors' office, one or more judges (even the judge presiding over the grand jury), even, say, the Attorney General of the State of Texas. This long explanation is to show how little direct influence a presiding judge can have over a grand jury.
In short, it is highly unlikely that Oldner, even if he had wanted to, could have "orchestrated" Paxton's indictment without his improper involvement being immediately, scandalously manifest, which it was not.
Oldner recused himself when Paxton reported for booking. And Paxton's been re-indicted anyway. From here, it is hard to see a foul, hard to see any harm.
Oldner says he's never been reversed on appeal. If true, that is an achievement to be proud of. He does not appear to have ever been a defense lawyer.
As for the substantively bad claims made about him, I think he was just in the wrong place in the wrong time when the Texas Attorney General wanted everybody to know that you don't tug on Superman's cape; you don't spit into the wind; you don't pull the mask off the old Lone Ranger; and you don't mess around with Ken.

Friday, January 22, 2016

Brent Webster- Smart, Charming, Running Hard to Be the Republican Nominee to Replace Cheryl Johnson

As candidates for the Texas Court of Criminal Appeals go, he's young and he's fresh, he's Brent Webster, an assistant district attorney from Williamson County, running against Sid Harle for the Republican nomination for the seat left vacant by the leaving of Cheryl Johnson.
Born in Houston, he grew up in the Cypress-Fairbanks area there. His high school speech coach, Walter Willis, went to high school with me, and now works near me in The Woodlands in Montgomery County. He testified that Mr. Webster was an extremely memorable and talented student. After high school, Mr. Webster went to Southwestern University in Georgetown, Texas where he met the lady sharing the photo with him above, Amanda Webster, with whom he has three children, the youngest seven months old. A UH Law grad, he got his first job in the Williamson County Attorney's Office. Apparently Ms. Webster's parents live near Round Rock, and, this, Mr. Webster says, is why he started there. After five years as an assistant county attorney, he joined the D.A.'s office. A child when Michael Morton's case went down, his main professional memory of the thing was John Bradley's struggle against DNA testing for Morton. An admirer of Justice Antonin Scalia, Mr. Webster speaks well of his conservative, but protective of defendants' rights, decisions.

He does not appear to have ever run before for public office

Mr. Webster appears to have answered a question of a San Antonio newspaper editorial board with a reference to Mr. Webster's duty as a Christian to defendants before the court. I have seen a photo of Mr. Webster helping to lead children's church at the Crossroads Church in Austin-- I think he meant Crossroads Community Church, but it might be another. The first word in the first subhead of his web page is "faith." When I spoke to him on the phone, I did not get the smarmy, itchy feeling I get from some political candidates. Some political actors appear to have compartmentalized their religion and their actions in the world. Their religion only informs their actions in that the past was better was better than the present and that, therefore, oppressing women, homosexuals, racial or ethnic minorities, brutalizing the poor, and not observing limits on killing our adversaries in war, indeed killing our enemies preemptively are signs of the True Faith.  I heard him neither say nor hint at anything immoral or unethical. He may be like many people-- even most people-- who cannot distinguish morality from religious faith. A person would have to have a very narrow acquaintance for the only good people a person would know is a member of their own religious sect.
This leaves three possibilities for Mr. Webster:
  1. That he is a naif-- that he is speaking awkwardly about his morality, using religious language when he need not.
  2. That he is a person of faith whose morality arises in the context of his faith. What is needful for people to be productive and moral in our work and in the public sphere is much more common for people than what is needful for people in their inner lives to have right relation to the Divine. That he would think that he came to his understanding of justice through protestant Christianity, that justice is justice whether it come from a protestant Christian, a Catholic Christian, a Jew, a Buddhist, a nonreligious person, even a Hindu or Muslim.
  3. That his campaign ad copy and photographs are dog whistles for the Christian base of Texas Republican primary voters.
I tend to believe, and I am not alone in tending to believe that Williamson County is not fastidious about following rules and common court practices intended to protect the rights of defendants. Mr. Webster suggested that he and his friends in similar positions in the Travis County District Attorney's Office which has a much better reputation, compared the felony plea bargains they made with their respective defendants and that they turned out to be similar-- for whatever that's worth. 

He said that he thought that the Texas Court of Criminal Appeals should not be a retirement court, that he reforms in mind to streamline processes there. He said that he supported working to sentence not necessarily longer, but smarter, and that he thought that non-violent offenders get overly long incarcerations in Texas (that might not mean shorter sentences, parole changes, etc., could be made).

I have no reason to think that he has any experience as a defense counsel at all.

He appears to be a hard-working, smart, charming, energetic fellow. If he fails to win, he will certainly be a person to watch for the future.

Monday, January 4, 2016

Federal Appeals Courts with Strange Names and Jurisdictions

There are thirteen federal appeals courts in the United States of America. Eleven of them are numbered.

First Circuit- Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
Second Circuit- 
Connecticut, New York, and Vermont.
Third Circuit- Delaware, New Jersey, Pennsylvania, and Virgin Islands.
Fourth Circuit-Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Fifth Circuit- Louisiana, Mississippi, and Texas.
Sixth Circuit- Kentucky, Michigan, Ohio, and Tennessee.
Seventh Circuit- Illinois, Indiana, and Wisconsin.
Eighth Circuit- Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Ninth Circuit- Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, and Hawaii.
Tenth Circuit- Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Eleventh Circuit- Alabama, Florida, and Georgia.

One of the others is the court of appeals for the District of Columbia. It covers the smallest geographical area of them all: 61 square miles. It's certainly the area with the most federal litigation. the appellate jurisdiction over the district courts of Washington City.

There is a court of appeals for the armed forces to review courts-martial.

Another unnumbered court of appeals covers the largest geographical area-- pretty much the full range of America's territorial jurisdiction.
  • of an appeal from a final decision of a district court  in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim arising under, any Act of Congress relating to patents or plant variety protection;
  • certain tax judgments;
  • of an appeal from a final decision of the United States Court of Federal Claims;
  • of an appeal from a decision of--
  • the Patent Trial and Appeal Board of the United States Patent and Trademark Office with respect to certain patent applications, derivation proceeding, reexamination, post-grant review, or inter partes reviews;
  • the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office or the Trademark Trial and Appeal Board with respect to applications for registration of marks and other proceedings or
  • a district court as to which a patent case was directed pursuant to certain statutes;
  • of an appeal from a final decision of the United States Court of International Trade;
  • to review the final determinations of the United States International Trade Commission relating to certain unfair practices in import trade;to review, by appeal on questions of law only, findings of the Secretary of Commerce under U.S. note 6 to subchapter X of chapter 98 of the Harmonized Tariff Schedule of the United States (relating to importation of instruments or apparatus);
  • of an appeal under section 71 of the Plant Variety Protection Act (7 U.S.C. 2461);
  • of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5;
  • of an appeal from a final decision of an agency board of contract appeals pursuant to section 7107(a)(1) of title 41;
  • of an appeal under section 211 of the Economic Stabilization Act of 1970;
  • of an appeal under section 5 of the Emergency Petroleum Allocation Act of 1973;
  • of a appeal under section 506(c) of the Natural Gas Policy Act of 1978; and
  • of an appeal under section 523 of the Energy Policy and Conservation Act.
  • any final decision rendered by a board of contract appeals pursuant to the terms of any contract with the United States awarded by that department or agency which the head of such department or agency has concluded is not entitled to finality pursuant to the review standards specified in section 7107(b) of title 41. The head of each executive department or agency shall make any referral under this section within one hundred and twenty days after the receipt of a copy of the final appeal decision.
These are pretty well the federal forums for appellate lawyers.