Saturday, June 19, 2010

Is Sharon Keller's influence waning on CCA?

Having been focused on Judge Sharon Keller's removal proceedings yesterday, it's worth taking a moment to point out that the Texas Court of Criminal Appeals appears to be in a period of transition, with the hardline faction led by Keller and Barbara Hervey more frequently finding itself on the losing side of cases where they'd probably have prevailed handily a few years ago. The Texas Court of Criminal Appeals blog identifies two examples of this phenomenon from published opinions released in March:
PD-0307-09, Ronald Lee Wilson v. State: The CCA held that a police officer’s use of a fabricated fingerprint report in violation of §37.09 of the Penal Code to persuade a defendant to confess requires the suppression of a suspect’s confession under the Texas exclusionary rule found in Article 38.23. Judge Meyers dissented because he did not think the officer violated §37.09 because the defendant’s confession to the offense meant the report was not really fabricated. Bless his heart. Judge Keasler, joined by Judge Hervey and Presiding Judge Keller, dissented because the Wilson had failed to argue a violation of §37.09 at the trial court, so the error was not properly preserved. Finally, Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented because the officer’s violation of §37.09 did not violate any of Wilson’s personal rights so he had no standing to complain. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.

PD-1780-08, Pamela Shareka Langham v. State: The CCA held that admission of hearsay statements from a confidential informant that a police officer used to get a search warrant violated the Confrontation Clause. Presiding Judge Keller, joined by Judges Keasler and Hervey, dissented because she did not believe the statements provided great, incriminating detail and that the CCA should have performed the harm analysis itself rather than remand the case. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, also dissented because the out-of-court statements were not “testimonial” because they referred to conduct for which the defendant was never charged. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.
No one would have been surprised if the court had ruled the other way in both cases and declared both instances "harmless error." But hard-liners on the court today hold less sway than they did five years ago, even though the personnel hasn't changed. Judge Keller has received a lot of attention for her actions (and just as much, her inaction) on September 25, 2007, but the public typically pays less attention to her day to day role, along with Judge Hervey, as the intellectual leader of a wing of the court that reflexively sides with prosecutors at every step and whose leadership has made the CCA a national laughingstock. Other judges on the court (all conservative Republicans) have episodically begun to resist, however, and these decisions reflect a recent trend of Keller's colleagues starting to push her aside and correct course.

I don't imagine Democrat Keith Hampton, who couldn't even win an election among criminal defense lawyers, has much of a chance this fall against Michael Keasler, a charter member of Keller and Hervey's extremist faction on the court. But in 2012 Keller and Hervey are both up for reelection in a year when high turnout from the presidential election could make them vulnerable.

Incidentally, Texas is lucky to have two blogs, one each from the prosecution and defense perspectives, covering the Court of Criminal Appeals and Texas criminal appellate law: the Texas Court of Criminal Appeals Blog is written from a prosecutorial perspective, and Liberty and Justice for Y'all, which typically views things more form a defense point of view. Both are a great way to keep up with CCA rulings. There's also, just to have mentioned it, the fine Supreme Court of Texas Blog covering the state's highest civil court.

MORE: From Jeff Gamso.


Anonymous said...

Thanks for bringing attention to the changing dynamics on the court.

I disagree that the prospects for electing Democrats will be better in 2012 because of increased interest and turnout caused by 2012 being a presidential year. Unless Obama suddenly gets a lot more popular in Texas, 2012's presidential race is not going to help Democrats in statewide races. However, Keller could lose all on her own in 2012 even if there is a large Republican turnout for whoever is the Republican nominee for president. She always gets fewer votes than other statewide judicial candidates and 2012 will be her first race since having charges brought against her by the SCJC.

The off year of 2010 is still a better year for getting a Democrat not running against Keller elected to the CCA. The governor's race is not going to be a blowout and will likely be much closer than 2012's presidential race in Texas. If White can avoid losing 60-40 and makes it closer to 53-47, then Hampton has a chance. Keller's troubles will likely give Hampton a couple of points, even though he is not running against her. The combination of White running a close race and the fallout from Keller could get Hampton close to winning. Getting the other few points he needs to win is up to him and the quality of the campaign he runs this fall, including his ability to raise about $150,000.

Gritsforbreakfast said...

Good comments, 10:07. I actually have a bet (dinner in the winner's town) with Charles Kuffner that Hampton will outpoll Bill White. So I agree with you if he raises money and runs a real campaign he has a shot to beat Keasler, who could be easily painted with Keller's broad brush, their records are so close. If Bill White gets 47% or more, Keith could indeed win, though Keasler has the better hole cards because of the Libertarian spoiler.

Honestly I'd love to see some good polling about the CCA race and the public's views on the Keller debacle. I doubt if anybody knows anybody but Keller on the court by name and suspect voters associate all the incumbents with her pretty much automatically, despite the growing divides on the court. OTOH, I assume Keller and other CCA incumbents have seen polling and she appears to think claiming her critics are all anti-death penalty zealots will be enough to let her skate. Who knows? Maybe it will.