Thursday, October 09, 2014

Shannon Edmonds on why Court of Criminal Appeals outcome in DeLay case '180 degrees' from Abbott's Supreme Court interpretation

The Texas Public Policy Foundation's Marc Levin has been promoting the idea of codifying the rule of lenity, so I was interested to hear prosecutor association rep Shannon Edmonds' take on the topic, testifying Tuesday before the House Criminal Jurisprudence Committee:
We have it in Texas already. We have it in Texas for cases that are outside the Penal Code, basically. It was just applied in the Tom DeLay case, okay, in which the Court of Criminal Appeals used it to interpret a statute 180 degrees differently than the Texas Supreme Court interpreted the same statute in the Elections Code. And the Court of Criminal Appeals applied it because it was a crime outside the Penal Code.  And the result is, they said the tie went to the defendant in that case rather than in the Texas Supreme Court case, then-Justice Abbott had found that someone could sue under the same Elections Code provision, and it all had to do with mens rea.
Shannon said the rule of lenity is an "obscure legal issue" that "egghead appellate lawyers" argue about in court after the fact and that existing statutory construction case law covers what Levin wants done. He cautioned specifically against applying the rule of lenity to penal code offenses. Elizabeth Henneke from the Texas Criminal Justice Coalition followed Edmonds and offered effective, lawyerly counterpoints to his position, for those interested in the specifics. See her written testimony.

Grits emailed DeLay's attorney, Brian Wice, to ask his opinion of Shannon's comments. He responded:
His comments about the rule of lenity being "an obscure legal issue" marginalize a tenet of the criminal law that is a fail-safe mechanism in cases such as DeLay where prosecutors were permitted to manufacture an illegal act out of a series of perfectly legal ones and to not merely prosecute Mr. DeLay but to turn his life upside town for almost a decade before the CCA put an end to their legally bankrupt persecutorial ploy.

And his half-hearted snarky remark about "eggheaded appellate lawyers" was, simply put, bush league. He can say what he wants. At the end of the day, the vote in DeLay was an 8-1 smack-down against the good folks he shills for. He can have the soapbox.  We got scoreboard.
You can listen to the hearing here. The discussion of the rule of lenity is the first item, with Edmonds comments on the topic coming at the 49 minute mark and Henneke following after him.


Anonymous said...

The rule of lenity applies to all federal criminal laws and to all local criminal laws and to all criminal laws outside of the Penal Code. If it is good enough for federal law then it ought to be good enough for our Texas Penal Code, especially for penal provisions that are mallum prohibitum (i.e. weapons offenses). Several Texas courts have noted that their our several penal statutes that are ambiguous where the rule of lenity could be applied. For example, Sections 30.06, 46.02, 46.03, and 46.035 have some ambiguous scenarios. The real reason some DA's are against the rule of lenity is that they don't want to have to defend cases that are ambiguous. We all want justice, but if the rule of lenity is good enough for the likes of conservative Justice Antonin Scalia, then common sense says it ought to be good enough for Texas law.

Shannon Edmonds said...

Being called snarky and bush league by Brian Wice in the same breath in which he claims "scoreboard" might be the most unintentionally funny thing on this blog, ever. An unexpected gift for your 10th anniversary, Grits! I hope you enjoy it.

Gritsforbreakfast said...

I'm happy for the blog to have brightened your day, Shannon, not to mention being called TDCAA's "favorite blog" on your Twitter feed. That one may have to go in the list of blurbs in Grits' right-hand column. :)

As for the 10th blogiversary, it's been decidedly humdrum with too little drinking involved. Kind of snuck up on me. (If Grits were something I actively fundraised for I'd probably have held a gala!) Plus since I was running a different one-man website from 1997-2004, switching to Grits didn't change that much of my day to day except that I no longer had to hand code everything in HTML. It's weird to have an anniversary of changing web platforms! But I guess it's really the adoption of the nom de plume, etc., as much as the new format.

@ Anon 8:14, I think you're right. I thought Ms. Henneke effectively countered Shannon's objections and recommend listening to bothe her testimony following Shannon and Marc Levin's testimony before him if you're interested in the issue beyond the surface-level treatment in this post. Interesting stuff. And there was discussion of the topic by other folks testifying later, too, interspersed with wider discussions about overcriminalization, the proliferation of statutes outside the Penal Code, and other topics related to their Interim Charge. Still, the rule of lenity discussion was framed pretty effectively by those first three witnesses, Marc's report, and Elizabeth's written testimony.