Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or question of law

Here's a cool graphic from Bad Chemistry comparing crime lab scandals in Massachusetts, Colorado, and the DPS crime lab scandal in Houston involving Jonathon Salvador:


Nice comparison, and for the most part a good summary, though I'd have said nearly 5,000 tests and "at least" 700 convictions were compromised in Texas - it could be many more. (Nice story, too; read the whole thing.) But there was a development this week in these cases that could alter that second Texas bullet. The Texas Court of Criminal Appeals withdrew its prior decision in the Harris County habeas writ for Leroy Coty, which prosecutors had considered a critical test case, following "reconsideration on its own motion."

The court cannot hold a full-blown evidentiary hearing - for that they would have had to kick the case back down to the district judge for further fact finding. So Grits is not precisely clear what's being considered here. All of the state's arguments are things the district judge refused to allow into evidence, like  information about chain of custody, the results of re-testing, etc.. Without putting such material into their briefs and arguments, what can the state even talk about? I'd love to know the backstory regarding how they came to reconsider this case. Are they reacting to media accounts? Were there ex parte communications with prosecutors warning them about "opening the floodgates"? Why would the court reconsider this on its own motion? And why would they choose the 19th such case - the prosecutors' designated test case - to begin asking these questions after blithely dismissing them for months?

The legal issue parties are asked to brief is "under what circumstances, if any, we should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case." So there's no statute they're interpreting, no legal precedent called into question except their own past decisions in these Salvador cases (which did not explain their own reasoning). Am I missing something or are these oral arguments just about determining a desired policy outcome? The parties are being asked to pose hypotheticals under which the court's own, prior rulings (holding that Salvador's possession of the drugs in the chain of custody in and of itself constituted a due process violation) should be followed or ignored. What question of law, really, is at issue that the court has not already decided? It's not like there are conflicting appellate court rulings, etc..

Though IANAL, to me the answer is simple to the question, "under what circumstances, if any, we should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case"? I'd respond: "In cases where, based on the Court of Criminal Appeals decisions in X, Y, and Z (all the past Salvador cases), drug evidence was tainted by being in the lab worker's sole custody." Just quote their own rulings back to them. What other Texas case law would cover such a novel circumstance? (I suppose we'll find out when they brief it, but none was cited in the court's prior Salvador-related orders.) At a minimum, IMO these cases merit relief when the evidence used against them is unavailable for retesting. The high court, though, went even further than that and their unequivocal rulings on the topic as things stand are the law of the land. Now, though, apparently at least some of the judges are suffering from buyer's remorse.

These "oral arguments" may end up having have more in common with a legislative committee hearing than a normal appellate conclave. The question posed to the parties really doesn't ask how to interpret the law, which the CCA has already done in 18 prior, related cases, but what policy the CCA judges should prefer and whether those policy preferences should outweigh the court's prior legal interpretations. If the court flip flops from its past rulings, it will be a pretty blatant example of outcome-based judicial activism. Though in recent years moderates on the court - three of whom are departing in 2014 - have been pushing back toward a more textualist approach, some CCA judges have an unseemly history of deciding the policy outcome they want and then constructing an often-tenuous legal justification to support it, ignoring or embracing stare decisis when it suits them. Time will tell if that's what happens here. The result will potentially affect hundreds or even thousands of cases.

As an aside: Based on past coverage, and taking into account the disappointing MSM silence following the latest Coty ruling, Grits optimistically places the over-under for how many MSM reporters show up to cover these important oral arguments at 2.5. Place your bets.