The Texas Court of Criminal Appeals has defused a heated debate that has raged in blogs and e-mails to CCA judges over a proposal to eliminate a special rule of privilege in criminal cases. CCA Judge Cathy Cochran says the state's highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine.This was a debate that occurred almost entirely within the blogosphere or though private emails, with the MSM apparently only noticing what was happening after the fact (with the exception of SA Express New reporter Elizabeth Allen on her own blog). Robert Guest at Dallas Criminal Defense Lawyer and Mark Bennett at Defending People first raised the alarm, then Court of Criminal Appeals Judge Cathy Cochran graciously authored a guest post on Grits explaining the court's suggestion. Keith Hampton from the Texas Criminal Defense Lawyers Association authored a guest post in response, while Jeff Rambin at Tyler Appeals also weighed in. See also the academic memo that started all this and an analysis by federal public defender Richard Anderson.
Perhaps it's the case, as Judge Cochran declared in her guest post, that the rule is a "vestigal tail" with "no wag," but the truth is the CCA has trust problems with the defense bar, not least because the presiding judge openly declares herself pro-prosecution. What's more, the court fairly routinely identifies as "harmless error" in its rulings all sorts of egregious errors that clearly did indeed cause harm, a fact the defense bar well knows. So there's little reason for defense lawyers to trust the CCA's good intentions or believe it when the court says the change won't hurt them. From their perspective, the CCA's idea of what's "harmless" routinely includes quite a bit of possible harm.
It was the right move IMO for the court to give the defense bar more time to come up with alternative language. It might be wiser still for the court to just let this sleeping dog lie, vestigal tail and all, letting some future court with more balance and fewer credibility issues with the defense bar tackle purely cosmetic changes to the rules.