Wednesday, January 27, 2016

Court of Criminal Appeals judges call out colleagues for judicial activism on TX junk science writ

Court of Criminal Appeals Judge Elsa Alcala sounds hopping mad. She lambasted several of her fellow jurists on Texas' high criminal court for an extreme brand of judicial activism which "will, for a very long time, leave an indelible stain on this Court's reputation for providing a fair forum for all litigants." The Rick-Perry appointee chastised her colleagues in no uncertain terms: "This Court's judicial decisions should not give the appearance of indecision or manipulation for the achievement of a desired result." Ouch!

Judge David Newell wasn't quite as harsh, but still scolded his colleagues for their outcome-oriented judicial approach: "We are not empowered to substitute what we believe is right or fair for what the Legislature has written, even if the statute seems unwise or unfair,"  he insisted. "Our job is to do our best to discover the Legislature's intent, not substitute our policy preferences for the will of the people as expressed through their elected representatives."

Judge Bert Richardson offered a concurrence, joined by Cheryl Johnson, declaring he is "baffled by the decision made by the court today."

The topic: Texas' "junk science writ," first passed in 2013 and amended in 2015 by the Legislature to codify the CCA's interpretation of the new statute on first impression. Unfortunately, three of the judges responsible for that first impression have since left the court, leaving a majority of judges who did not agree with either the court's precedent or the Legislature's codification of that ruling.

Rather than interpret Ex Parte Neal Hampton Robbins under the new statute passed last year, the court ruled that the motion for rehearing was "improvidently granted," thus allowing case law to revert to the 2013 statute before it was amended. But Alacala found that move disingenuous, calling out Judges Sharon Keller, Barbara Hervey, and Michael Keasler by name in a rare display of overt judicial acrimony:
The three dissenting judges in Robbins II maintain their former dissenting opinions that relief should not have been granted to applicants under the 2013 statute, but they now appear to vote in a manner that has the effect of granting relief to applicant. Though their vote ends up at the right place in that the correct result occurs, it is a day late and a dollar short. Or, rather, it is about a year or more late and it is significantly short because the dissenters in Robbins II appear to maintain their view that similarly situated defendants are not entitled to habeas relief under the new-science statute. What is going on here? I do not envy the position of future litigants who must try to decipher this Court's position on when relief is warranted under the new-science statute. Because of the strategic maneuvering that has plagued this case now for more than a year, the answer to that question is entirely unclear. 
So bottom line, Neal Robbins gets relief but the court did so in a way that does not extend the same protection to others. As Judge Newell opined, though, that's "a decision that the Legislature gets to make, not this Court." And it leaves the law surrounding the topic tenuous and unsettled.

Finally, for any tea leaf readers out there, though Judge Kevin Yeary was silent in this exchange, the vote patterns described indicate that he sided in this debate with Keller, Hervey and Keasler, providing further evidence that he's voting fairly consistently with the faction of the court which reflexively rules for the government in nearly every case. It's early in his tenure, yet, but so far your correspondent is not encouraged.

To understand the history and politics of the case, read Alcala's opinion. To understand the underlying legalities, read Richardson's. And for a conservative advocate for judicial restraint who seemed genuinely puzzled why his Republican colleagues would ignore the law and substitute their own views for the Legislature's, read David Newell's offering.

MORE: See initial coverage from the Texas Tribune.

See prior, related Grits posts:


Anonymous said...

This time I am confused. GFB, can you share in really plain language what's going on? Just one or two sentences an unsophisticated lay person like me can understand. Thank-you.

Gritsforbreakfast said...

It is confusing. Alcala's opinion walks through it all.

Lege passed a law in 2013 that the court 5-4 interpreted broadly. Then 3 of the 5 were replaced with new judges, two of which voted for the state's motion to reconsider under the newly constituted court. In 2015, the Lege passed a bill codifying the court's ruling. But instead of deciding the motion for rehearing under the new law, there were now 5 judges opposed - one (Meyers) thinks the Lege simply has no constitutional authority to legislate habeas, while the others apparently just disagreed with the Legislature and prefer to substitute their own judgments. So, they simply dismissed the motion for rehearing, which gave relief to Robbins but prevented the court from establishing precedent.

Reading tea leaves, Judge Cheryl Johnson is leaving the court and Meyers will lose in November (he switched parties and is running as a Democrat). So the four likely are hoping that they'll gain allies on the court soon and by the time another case on this reaches them, they'll have the votes to simply issue a de facto judicial veto and neuter the new law regardless of what the Legislature intends. That's how I read the vote, anyway.

Anonymous said...

Where is Neal Hampton Robbins now? Is he out or imprisoned?

Anonymous said...

He is at Stiles Unit waiting for transit to take him to Montgomery County for his Court date in mid Feb. He is a innocent man and the truth will set him free!

Anonymous said...

He is a guilty POS and Tristens mother will be present at any bond hearing or any other court date he has.. You people don't realize that Mr. Robbins caught a lucky break that the other POS in this case Patricia Moore performed Tristens autopsy.. What we should really discuss is Robbins behavior the day Tristen was murdered... Or how he has multiple explanations for her death.. Really?? I mean which was it toxic mold or maybe those COUPLE of stuffed animals in her bed or no no wait it must of been his mother.. Of course that one was convieniently after his mother died ... So wake up people , anyone charged with such a horrific thing would say I am innocent because even convicts in prison don't like baby killers or rapist... So world know this I will fight to make sure he is found guilty again... I have seen convictions with less than what the state has now...