Retired Ninth Supreme Judicial District Appeals Justice Dies

The honorable James Donald McNicholas, former associate justice of the Beaumont's Ninth Count of Appeals, died Thursday, October 13, 2016 at Harbor Hospice- apparently at one of their Beaumont locations. He had been the municipal judge of Beaumont for approximately the last ten years, continuing until just before he died. He served as on the Court of Appeals only from 1983-1984.

McNicholas was born in Marinisco, a tiny logging village on the Upper Peninsula of Michigan, a tiny village near the Wisconsin border on April 23, 1918. He got his undergraduate degree and law degree from the University of Michigan. Before his last year of law school, he served as a Captain in the Third Army during World War Two and served under George Patton. He received his law degree in 1948. He was admitted to the Michigan bar in 1948 and the Texas bar in 1949. McNicholas was admitted to practice in all Texas state courts and the United States District Court for the Eastern District of Texas as well as the United States Court of Appeals for the Fifth Circuit. He is a member and past president of the Jefferson County Bar Association, as well as a member of the Texas Association of Defense Counsel.

Judge McNicholas practiced law in Beaumont for sixty years. Most recently he was of counsel at Germer, PLLC. He was Mayor of the City of Beaumont from 1968-1970 and was a Board Member of Jefferson County Drainage District Six at his death. 

Funeral services will be held at 11:00 a.m. on Monday, October 17, 2016, at St. Andrew’s Presbyterian Church, 23rd and Gladys, Beaumont, Texas. Our condolences go to his family.

Dallas Court of Appeals Justice Resigns in Lieu of Facing Removal Proceedings

David Lewis, a justice on Texas's Fifth Court of Appeals in Dallas, resigned just as removal papers were filed against him with the Texas Supreme Court on Tuesday. Lewis suffered from alcoholism and depression and had been suspended without pay since September 2014. According to the records of the Texas Commission for Judicial Conduct quoted in the Dallas News blog of the Dallas Morning News, Lewis was "erratic, hostile and threatening." A doctor chosen by the Judicial Conduct Commission reported that Lewis's problems began as early as 2013 and that a scan of his brain in 2015 is of a person who is experiencing decreased cognitive function and is trying to cover that up.
Governor Abbott will appoint a person to fill Lewis's seat on the bench until his term ends in 2018. Lewis is a Republican. Texas's Fifth Court of Appeals is the state appeals court for Collin, Dallas, Grayson, Hunt, Kaufman, and Rockwall counties.
Hat tip to the Texas Lawyer newspaper's online bulletin.

". . . don't pull the mask of the ol' Lone Ranger and don't mess with SCOTUS"

In Booth v. Maryland, 482 U. S. 496 (1987), the Supreme Court of the United States held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Four years later, in Payne v. Tennessee, 501 U. S. 808 (1991), the Court granted certiorari to reconsider that ban on “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” The Court's holding was expressly “limited to” this particular type of victim impact testimony. Booth also held that a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment, but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision. The Oklahoma Court of Criminal Appeals has held that Payne implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence. Conover v. State, 933 P.2d 904, 920 (1997).
A jury convicted petitioner Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P.3d 1203, 1226–1227.
SCOTUS doesn't like lower courts messing with its precedents.
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless SCOTUS reconsiders that ban. 
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law, but SCOTUS is sending the case down on remand. 
Shaun Michael Bosse v. Oklahoma, No. 15–9173, 580 U.S. ____, (Oct. 11, 2016) 

Justice by the Book, Not by the Sound Bite

Meet the Presiding Judge of Dallas County's Criminal Court Number One, Robert Burns. He is also the Democratic Party candidate for Texas Court of Criminal Appeals Place Six,
He came to live in north Dallas when he was 5 years old, graduated from Richardson High School, then my alma mater Austin College in Sherman, a long hour's drive north of Dallas. He's a 1990 diplomate of Southern Methodist University.
His Republican adversary is Judge Michael Keasler.
He has a strong court management record, and has a strong reputation for attention to detail in his work.