CCA: Junk science writ covers bad scientists as well as bad science

As birthday presents go, Texas Court of Criminal Appeals Judge Cathy Cochran quoting me in a concurrence on the winning side of Ex Parte Robbins - the first, pivotal case interpreting the state's new junk science writ, as it's been called, at Art. 11.073 of the Code of Criminal Procedure - was the best one I got this year. That statute, which became effective Sept. 1, 2013, provided a new basis for habeas relief if a defendant can show, by a preponderance of the evidence, that they would not have been convicted if erroneous scientific evidence had not been used against them.

This is the second time the court considered a writ from Neal Robbins on this topic; see Grits coverage from the first, before the new law had passed. Judge Tom Price was the swing vote who switched positions in light of the new statute. (Congrats to Robbins' attorney Brian Wice for his perseverance.)

The court faced a tough question: What to do when the issue isn't that the field of science changed but the scientist herself was merely wrong and later self-corrected? On a close 5-4 vote, the court decided Robbins deserved relief, reading the statute to maximize the court's jurisdiction over junk-science habeas cases.

The judges divvied up the work. Judge Paul Womack, who will soon be leaving the court, wrote the main opinion. Judge Cochran's concurrence focused on making the case for an expansive reading in the legislative history. (Grits has explained before why she's right about that.) And Judge Cheryl Johnson's separate concurrence made the textual case, arguing that the court is not charged with evaluating science but evidence, which inevitably in court means the testimony of an individual scientist.

Judge Michael Keasler dissented, declaring the majority had reached an "absurd" result interpreting "an admittedly awkward" statute. He argued that the court's habeas jurisdiction under 11.073 should be limited to the narrowest possible class of defendants - extending only to bad science, in other words, but not bad scientists.  Judges Sharon Keller and Barbara Hervey agreed with Keasler save for a procedural right they said the defendant had not forfeited. The fourth dissenter, Larry Meyers, ironically believed the Legislature had inappropriately infringed on the court's authority by granting it optional ("may," not "shall") authority over a new class of cases.

Why ironic? While helping the Innocence Project of Texas advocate for passage of Texas' junk science writ, I had occasion to read an excellent book by Paul Halliday titled, "Habeas Corpus: From England to Empire," which sampled every fourth year's habeas corpus writs (and selected, notable others from the off years) from the King's Court in England over hundreds of years to portray the writ as a dynamic arena for turf wars between the judicial and legislative branches. Over the course of British history, Halliday argued, and I would argue over American history (certainly Texas'), too, most legislation regarding habeas corpus has restricted courts' jurisdiction. The best, recent example in Texas were legislative restrictions on habeas in the '90s aimed at speeding up executions, strictures that one of their legislative authors, Pete Gallego, has said went too far.

Thanks to Halliday's book, as the Innocence Project of Texas promoted the legislation being interpreted in Robbins, (a task with which I assisted them as Policy Director for several years), I was acutely aware that this bill cut against the historical grain by granting the court more habeas power rather than limiting it. As originally conceived, habeas corpus was a function of the unfettered divine right of kings, and thus the King's Court, to bestow mercy on their subjects. Limitations on the Great Writ arose when the will of the Court conflicted with elected Parliaments down the line.

Today, we're centuries away from divine rights. Legislative bodies have profoundly constrained habeas corpus and thus the ability of courts to dispense justice to prisoners as they see fit, independent of the popular will of the day. But thanks to 2013 legislation by Sen. John Whitmire and Rep. Sylvester Turner, the CCA has enjoyed a rare reversal of the historical trend of vanishing habeas authority. Meyers' impression is that the Legislature was meddling. My impression is that they were correcting for past meddling.

Otherwise, read the opinions for yourselves; it is what it is. Unless the new court sees things differently next spring (three members of the Robbins majority will be replaced in January), for now the CCA has maximized its jurisdiction to remedy bad scientists in criminal cases as well as bad science.

This was the outcome Grits had hoped for, interpreting the new statute broadly. Even if the timing was serendipitous, there's no question the Robbins decision was my favorite birthday gift of the year.

MORE: From Craig Malisow at the Houston Press.