Comparison between Texas's Court of Criminal Appeals and SCOTUS as to Handling Last-Minute Death Appeals

If, God forbid, you ever find yourself working on a capital appeal, be aware of the practical details of filing last minute papers. Texas Court of Criminal Appeals Presiding Judge Sharon Keller famously let her court's office close so that a last minute appeal would not be accepted. You can search this blog for the struggle between Presiding Judge Keller (known as Sharon Killer to the death penalty defense bar) and those opposed to the death penalty, including, but not limited to, my old high school debate adversary University of Houston law professor David Dow. David Oscar Markus of the Southern District of Florida blog drew my attention to a New York Times article about the Supreme Court of the United States's "death clerk."

Drive on Those Improved Shoulders!

Donald Lothrop drives up behind another driver who has slowed down before crossing railroad tracks in Boyd, Texas. Lothrop passes that other driver on an improved shoulder as they are both crossing the tracks. A cop stops Lothrop because the pass is illegal. That stop is the occasion for Lothrop's getting arrested for DWI. Was Lothrop's driving illegal? Judge Melton D. Cude of the Wise County Court of Law Number One thought so. The Second Court of Appeals in Fort Worth agreed. But not the Court of Criminal Appeals.  Judge Paul Womack  delivered the opinion of the Court, in which Judges Meyers, Price, Johnson, Hervey, Cochran, and Alcala joined. Lothrop cited the Court to Transportation Code section 545.058(a): "An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only . . . to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn . . . or . . . to avoid a collision." The CCA agreed that Lothrop was passing another vehicle that was slowing on the main traveled portion on the road and that "necessary" in the statute couldn't mean what necessity would normally mean in such a statute, that is, necessity to avoid a wreck, since avoiding a collision is one of the other enumerated allowances for driving on the improved shoulder. Judge Cheryl Johnson wrote a concurrence, emphasizing that driving as Lothrop did is normally very unsafe, but that the testimony in favor of the stop was the testimony of the arresting officer only, who only said that Lothrop's driving was illegal, not that it was unsafe. Johnson says that the result would have been different had the cop testified that Lothrop had been driving unsafely. Judge Michael E. Keasler dissented without an opinion. Presiding Judge Sharon Keller concurred without an opinion: no paper trail for her, she's running for reelection.
Appellate advocacy lesson here is that if the precise language of statute makes the ordinary understanding of an expression in another part of the statute supererogatory, if might make it meaningless.
Thanks to Michael Falkenberg of the CCA staff for correcting an error in an earlier edition of this post.

Texas Court of Criminal Appeals Overturns Mitigation Expert Strike

The Texas Court of Criminal Appeals overturned the punishment phase of a capital murder trial because the district court excluded the testimony of a criminal justice professor who would have testified that the defendant's responsibility was lessened and that he was less of a future danger because an older woman groomed him for a sexual relationship for approximately five years before the crime. It found that Dr. Donna Vandiver qualified as an expert on female sex offenders, that her testimony would assist the jury in determining Christian Olsen's moral responsibility for the crime and the likelihood that he would be a danger in the future, and that her testimony would have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The erroneous exclusion of constitutionally relevant mitigating evidence offered by a defendant facing a possible death sentence requires reversal unless beyond a reasonable doubt it did not contribute to the punishment.
The district court thought that the opinion to be offered was psychological, and Vandiver admitted that she wasn't a psychologist. Vandiver's testimony was the best evidence that the defense had that Olsen shouldn't get a lethal injection.
I understand that one of Olsen's lawyers was Billy Carter. The error in the case seemed particularly well preserved.
Michael E. Keasler wrote the opinion for the CCA. Presiding Judge Sharon Keller concurred, explaining why she thought that this exclusion-of-evidence issue, normally not error of constitutional magnitude, was such in this case. Judge Lawrence E. Meyers dissented without opinion.
In short, it's easier to get a mitigation expert into a capital trial than it is other kinds of experts in other cases.
Thanks to CCA staffer Michael Falkenberg for correcting an error in an earlier edition of this post.

Libertarian Wisdom, from Sharon Keller, of All People

Normally I don't expect nuanced libertarian sensibility from Texas Court of Criminal Appeals Presiding Judge Sharon Keller, but she dissented from a denial to hear a habeas corpus petition challenging part of Texas's improper photography or visual recording statute. From reading the opinion, I bet I know how the brief was written, and, with the benefit of hindsight, I've got some advice for you about what to do if you're in applicant's counsel's position.
David L. Hudson, Jr. of the First Amendment Center at Vanderbilt University and the Newseum wrote about this dissent. He explained that Collins Nyabwa was arrested and convicted for taking photos up the skirts of women in a store. Nyabwa had applied for a pretrial writ of habeas corpus, arguing that the part of the statute he was charged under was contrary to the free speech guarantees of the First Amendment to the U.S. Constitution and article 1, section 8 of the Texas Constitution, and was overbroad and vague.
The trial court denied him; Texas's Fourteenth Court of Appeals in Houston denied him; and Texas's Court of Criminal Appeals denied him. Presiding Judge Keller, though, dissented from the denial with an opinion (Judge Laurence Meyers dissented from the denial without opinion) arguing that the law was sweepingly broad, that it could criminalize photographing or videotaping a fully-clothed person walking down a public street. If such is sexually gratifying to a person, well, those sexual thoughts may be protected by the constitutions.
When one writes a brief in a case like this, the first problem to keep the court from discounting the claim as the ordinary sophistry of the person accused of a crime. One has to write so as to close every escape hatch that could keep the court from having to consider the merits of the claim. It's very difficult. No elected official wants to be accused of having been soft on creepiness (For the record, I think Nyabwa's behavior was creepy.). Being able to deal with this kind of problem, is the bread and butter of criminal defense advocacy.
But good advocates do something extra in situations like this when needing a court to apply unpopular law, and that is to show the court that this case will likely get to a higher court, and when it does, that higher court will make the jurist or jurists look bad by overruling them. Cite to and explain how the higher court will rule. If in a trial court, make your motion look like an appellate brief. If in an intermediate appeals court, have sections of your brief look like an application to be heard in the higher appellate court. From the opinions, it looks to me like the briefs were strong on keeping from being poured out and getting considered, but not so much on showing that the higher court would absolutely be bound to rule in the applicant's favor even if the judge the applicant was in front of did not want to rule in the applicant's favor.

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.

The Texas Court of Criminal Appeals

Texas is one of  only two states-- Oklahoma is the other one-- that has more than one highest court. In addition to the Texas Supreme Court-- the highest court for civil matters, including juvenile cases-- the Texas Court of Criminal Appeals is the highest Texas court for criminal matters. Like the Texas Supreme Court, it has nine members, though it only had eight recently when an appointment to the court was delayed as an economy measure. Supreme Court members are called justices while the members of the CCA are only called judges.
Led by Presiding Judge Sharon Keller, a Dallas real estate heiress infamous for closing the court on an execution evening. The rest of the court is nondescript. Judge Tom Price, for example, claims on the CCA website to be only the third person from Dallas ever on the court. The Court made news a few years ago when it refused to grant a new trial to Jose Medellin, murderer of a pair of teenage girls in Houston even though the International Court of Justice had ruled in Medellin's favor.
All death penalty cases in Texas are automatically appealed to the Court of Criminal Appeals.

A Court Can Make a Prosecutor Turn over a Complainant's Video

Texas state judges have the power to require prosecutors to copy a sex assault complainant's video for the defense. Court of Criminal Appeals Judge Paul Womack wrote for a unanimous court save for the dissent of Presiding Judge Sharon Keller (When this opinion was handed down, the Court only had eight of its usual complement of nine judges.  Retiring judge and former Deer Park corporation counsel Charles Holcombe was replaced late as an economy measure.) The majority held that the recording was non-privileged evidence to which the defense had a right. Presiding Judge Keller would have held that the recording was a "written" witness statement-- by statute, the State could have refused to release it.

Rehearing Denied in Sharon Keller Judicial Conduct Case

It's over. She did win. Hat tip to the Texas Lawyer Tex Parte Blog.

How Sharon Keller's Case Might Not Be Over

I don't know of a place where you can find this for free, but the Texas Lawyer has an article clearly explaining how Texas Court of Criminal Appeals Presiding Judge Sharon Keller's judicial misconduct case is not over yet. The meaty piece--great work by TL Senior Reporter Mary Alice Robbins--in no way lends itself to summary. The Commission's examiner--read "prosecutor"--basically argues that since the appellate court found the law to be different than the lower court thought, the lower court should have the benefit of that correction. The Commission might want to vote differently after the legal error was corrected.

Presiding Judge Keller's Case Might Not Be Stone Dead

The Houston Chronicle reports how and why here.

National Attention to Presiding Judge Sharon Keller

AP's story is here. Hat tip to Howard Bashman's How Appealing blog.