Wednesday, June 25, 2008

CCA backs off changes to attorney-client privilege rule

The first dead-tree coverage of a proposed change to the Texas attorney client privilege rule didn't arrive until after the idea was retracted. The Court of Criminal Appeals last week backed off a proposed change to Texas' attorney client privilege rule in response to complaints generated in the blogosphere. Reports Texas Lawyer:
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.

9 comments:

Anonymous said...

Dead tree or not, MAR is a good reporter.

Gritsforbreakfast said...

I agree, she was just late to the game on this one.

Anonymous said...

We can debate weeklies vs. blogs. The game was over, but someone needs to write the story. That is true even when most already know the score.

Gritsforbreakfast said...

Weeklies vs. Blogs? Please! The rule was submitted to the Texas Register in March and nobody but Guest and Bennett covered it. MAR is a good reporter, but she missed the story on this one.

Michael said...

It's amazing to read the citizen commentators at the Houston Chronicle website go nuts whenever a big conviction gets flipped or a death row inmate gets a reprieve. Howls about the "liberal courts" are so far from reality, it's impossible to ignore the impact the radical right's anti-justice propaganda has had. I'm sure these citizens would be gratified to know that these days, a conviction is much more likely to be upheld than reversed on a technicality!

Gritsforbreakfast said...

BTW, 7:09, I missed the story too, fwiw. I actually saw the new language on their website several weeks before, didn't understand what it meant or did, and didn't follow up. Robert Guest deserves credit for sounding the alarm, and Mark Bennett for breaking the story.

The reason I began with the media critique in the post wasn't (at all) aimed at MAR, but at the half-dozen or so court-beat reporters at Texas newspapers whom I emailed trying to get them to cover it. One even replied after I sent her several links asking to be taken off any "auto-list"! Elizabeth Allen wrote about it on her blog, but the story didn't make it into the daily.

Robbins was the first MSM journalist to cover this, and she did a good job. I just don't understand why others who knew about the story (and weren't on a weekly timeline) didn't jump on it?

A Lawyer With Privileges said...

I was suspicious of the court's motives and the real impact of the change, so I'm glad they're seeking greater consensus before pushing this through.

However on behalf of Grits readers let's extend MANY, many kudos to Judge Cochran for coming onto this blog to explain her position, and to Grits for facilitating the debate. A similar discussion wouldn't and possibly even couldn't have occurred a decade ago, which is pretty darn cool when you think about it.

Anonymous said...

Michael, you are right about the comments on the Houston Chronicle website. It is more like a pack of dogs or a lynch mob. If I practiced in Houston, I would definitely voir dire on whether any of the veniremen read the Chronicle online.

Anonymous said...

I like to play Asda Story, because I like its name, also I like Asda Story gold. My friend told me that she would buy Asda Story money for me, and I was so happy. I do not like to go shopping, because it always spends a lot of money, but I never hesitate to buy Asda Story Gold. You can buy cheap Asda Story gold; it is so easy and convenient.