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."

A Texas Trial Judge Cannot Rule Pretrial that Appellate Delay Makes Seeking the Death Penalty Unfair.

Texas's Court of Criminal Appeals has overruled a trial judge who stated that a capital defendant on retrial could not receive due process after being in the appellate system for approximately 30 years. Judge Cathy Cochran wrote the opinion for the majority which, along with her consisted of Presiding Judge Sharon Keller and Judges Paul Womack, Cheryl Johnson, and Elsa Alcala. Judge Michael E. Keasler wrote a concurring opinion in which he was joined by Judges Laurence E. Meyers and Barbara Parker Hervey. Judge Tom Price dissented.
Longtime Dallas judge John Creuzot made a pretrial ruling that the State of Texas, represented by the District Attorney Craig Watkins's office, could not seek the death penalty against defendant Jonathan Bruce Reed in his current retrial because the passage of approximately 30 years had rendered some of his punishment mitigation evidence unavailable. The State filed writs of mandamus and prohibition to undo Cruezot's actions. The Court of Criminal Appeals majority held that the State had no remedy at law and that the trial judge had a ministerial duty to not make such a ruling for the following reasons:

• There is no authority that Judge Creuzot has the power to make such a ruling pretrial;
• The United States Supreme Court has not recognized a claim like Reed's;
• The thirty years' delay worked in Reed's advantage-- when he was first tried SCOTUS had not changed the law so as to provide a legal basis for his claims;
• Although he may have lost mitigation evidence from his youth, the evidence of his behavior during his 30 years of incarceration will be fresh, better evidence than he would have had before;
• The harm of the delay challenges the State-- it has the burden of proof;
• Reed's complaint about the evidence is not yet ripe-- he might be acquitted; his mitigation evidence might be sufficient to save his life-- all his injury is hypothetical;
• SCOTUS says that problems from delay must be shown at a trial;
• The delay is not the State's fault-- it should not be punished for a delay it had no hand in.

Judge Keasler's opinion would be narrower. It would reach the same conclusion as the majority, but based only on the majority's last reason-- the State shouldn't be prejudiced for something that is not it's fault.
Judge Price did not think that it was categorically impossible that a prejudicial degradation of evidence caused by delay could not be determined pretrial. Therefore,the trial court does not have a ministerial duty to rescind its order-- that is, the State does not have a clear right to the relief it seeks.

South Texas Law Professor Richard Graving Dies

Just got word that Professor Richard Graving of South Texas College of Law in Houston, one of my old legal research and writing professors, passed away recently. A witty polyglot (in a hypothetical for an assignment a party was named Payaso and Bobo, Spanish for clown and fool), I remember that he introduced me to Lord Denning's writings. He often took his breakfast at the New York Bagel Shop, an invariable sign of good taste and judgment. Sorry to see him go. R.I.P.

Lethal Injection Too Good for Them

Now, in addition to trying to kill death row inmates, the State of Louisiana is additionally suing them all also.
To head off challenges to Louisana's death sentence execution protocols under her Administrative Procedure Act, the State is suing every death row inmate to bind them to a declaratory judgment that death penalty procedures are not subject to the act. Louisiana authorities filed their countersuit after death row convict Nathaniel Code challenged challenged Louisiana's procedures as inconsistent with the Act. Some states have held that death procedures have to go through administrative procedures such as rule postings, public comment periods, hearings, etc.; others have not.
Texas prison prosecutors brought a marijuana possession charge against a death row inmate. People at the prison public defender's office there marvelled at the bureaucratic mind. Putting them to death was not enough, they had to be prosecuted for pot, too.
Hat tip to Hon. Craig Estlinbaum of Adjunct Law Profs Blog for this.