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Brenda's Husband, Joe's Dad and Bonny's Brother.

Thursday, November 17, 2016

What Happens to Trial Exhibits on Appeal?

In Texas state practice, admitted trial exhibits are attached to the court reporter's record. Where an exhibit is very valuable (e.g. a bearer bond) or dangerous (a firearm) or very bulky (an image as large as a billboard), trial judges will often grant motions for images of exhibits to be substituted for the exhibits themselves.
At the court reporter's request, the trial court clerk must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court clerk possesses an original exhibit, either the trial court or the appellate court may order that person to deliver the exhibit to the trial court clerk.
 If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.

Tuesday, November 8, 2016

Things Could Be Different

Mark W. Bennett runs for Texas Court of Criminal Appeals Place Six in the upcoming election. He is the Libertarian nominee. When asked why he was running. he was most direct: "Somebody has to," and that the incumbent stands for the status quo. He opposes partisan elections for judicial office, says that they are harmful to freedom and justice, since long-time partisans get nominated and, therefore, elected, even though if one were to seek the best judges possible, Republican or Democratic party hacks would be the last place reasonable people would look. He offers a different choice.
Mark W. Bennett caused part of the statute against improper relationship between educator and student to be held to be unconstitutional on the ground that non-obscene materials that concern sexuality may well be appropriate objects of study, and disallowing communication about them is a content-based restriction on protected speech. Examples would be "The Rape of the Sabine Women,  the "Venus de Milo," ancient Greek myths concerning the sexual prowess of Zeus and Renaissance ribald plays (I noticed that there was no mention of the Bible-- the end of the story of Noah, Lot's daughters, the Song of Solomon, etc.).
Bennett proposes to make lawyers work harder-- he believes CCA judges are afraid to find ineffective assistance of counsel when defense lawyers give it and are afraid to recognize pleadings that do not state a cause of action, when prosecutors write them.
Many law students and young lawyers, when they first encounter criminal practice are struck how much the State seems to always be fighting from the high ground. The criminal laws that are important on a day-to-day basis favor the State, either directly or by effect. And on top of that, judges who use their considerable discretion to practically always  favor the State tend to be rewarded by the electorate rather than punished. Bennett appears to find this scandalous, and wishes to show that the status quo is not inevitable, it is what the electorate votes for. People could vote for something different.