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:

• Abbott signs bill codifying broad reading of Texas' junk science writ
• Difficult to read tea leaves from oral argument on junk science writ
• Previewing oral arguments on Texas' junk science writ
• Podcast: Tweaking Texas' junk science habeas writ
• Habeas matters: Appointing counsel, codifying Robbins
• CCA: Junk science writ covers bad scientists as well as bad science