Monday, June 11, 2007

Hervey: Innocence a CCA priority, expect more public defenders

Texas Court of Criminal Appeals Judge Barbara Hervey was interviewed in yesterday's San Antonio Express News, and touched on some familiar Grits topics:

Q. If you could improve on one area of law education, what would it be?

A. We are working on innocence. Each session, the Court of Criminal Appeals gets $20 million in legal education funding from the Legislature. This year we got the Legislature to set aside a different pot of money ... to provide education in the use of DNA, how to deal with recantations, eyewitnesses and prosecutorial misconduct. Texas is getting onboard with the new science and is way ahead of some states, but there is still a long way to go.

Q. Have innocence-related projects met with resistance?

A. It is not so much resistance as apprehension and fear. Some police departments might feel (if convicts are exonerated) the public will think they are doing crappy work. All segments of the system are afraid they will be blamed, but they are coming onboard.

With all respect to Judge Hervey, in practice "apprehension and fear" pretty much translate into "resistance." And let's face it, some police departments are "doing crappy work" or we wouldn's see so many innocent people who've been railroaded. Same goes for applellate judges.

We've recently seen a handful of cases where the Court of Criminal Appeals is inching away from the "Damn 'em all, hang 'em high" judicial philosophy that led Texas Monthly to call them "Texas' worst court" (an appellation, one should add, for which there is no small competition). But if the court's fundamental philosophy is shifting (and Hervey's naming "innocence" as a priority makes me slightly more hopeful in that regard), the pendelum swing has been slow in coming and waiting on it has cost both the CCA and the entire Texas justice system dearly in lost credibility. Restoring that will take more than a couple of good decisions and a few newspaper interviews.

Judge Hervey also predicted the rise of more public defender offices in Texas the coming decades, a trend I've written about frequently:
Q. How do you see the legal profession changing in the next 20 years?

A. About 65 percent of the trial dockets are criminal, and I don't see that going down. I think we will see more public defender officers.

Every new public defender office established in recent years in Texas has been created with startup capital from the Texas Task Force on Indigent Defense, a grant and technical assistance project established by the 2001 Fair Defense Act and chaired by CCA presiding Judge Sharon Keller. Earlier this year I called the expansion of public defender officers one of the "underreported success stories in Texas criminal justice politics." I'm glad to hear Judge Hervey say she expects that good work to continue.


Anonymous said...

CCA courts 1 & 14 are the worst in Texas. If you are from Harris County, your appeal is not even read. These courts need to be cleaned out and something done regarding how they render their verdicts.

Funny how Ms. Hervey says one thing and then votes the other way. These courts are the most unfair in Texas and need to be cleaned out.

Anonymous said...

She's talking out her arse.
"Innocence a priority." Bullshiat.

In a 5-3 decision on June 11, the Court of Criminal Appeals stayed the execution of Cathy Lynn Henderson, citing new research on infant head trauma and a medical examiner's doubts about the cause of 3-month-old Brandon Baugh's death in 1994.

Henderson, who had been babysitting the child at the time of his death and fled to Missouri, where she was arrested, had been scheduled for execution on June 13. In a per curiam order, the CCA remanded Henderson's case to the 299th District Court in Austin.

CCA Judge Lawrence Meyers did not participate in the decision.

According to the CCA's order, Henderson has argued that the critical issue in her 1995 trial was whether Henderson intentionally caused the baby's death or the death was the result of an accidental fall onto a concrete floor. As noted in the order, research involving the biochemical analysis of head trauma in infants indicates that the type of injuries Baugh suffered could have been caused by a short-distance fall onto concrete.

The court further noted in the order that Dr. Roberto Bayardo, the Travis County medical examiner at the time of the baby's death, stated in an affidavit that he would have taken the new scientific information into consideration if it had been available in 1995 when he formulated his opinion about the cause of Baugh's death. Although Bayardo testified at Henderson's trial that the baby died as a result of being "slammed very hard against a hard surface," Bayardo stated in the affidavit that he is not so sure about the cause of death, according to the order.

"Based on the physical evidence in the case, I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional action or an accidental fall," Bayardo stated in the affidavit.

CCA Judge Tom Price wrote in a concurring opinion that Henderson's newly available evidence establishes a prima facie case under Texas Code of Criminal Procedure Article 11.071, §5, to support her claim of actual innocence. [See the court's opinions.]

"It's a tragic situation, but I think we presented evidence of the new science that warranted examination of her trial, her conviction," says Henderson's defense team.

CCA Presiding Judge Sharon Keller wrote in a dissenting opinion that the facts Henderson asserted in her habeas corpus writ application do not establish any recognized grounds for relief under Article 11.071, §5(a)(1).

Judge Barbara Hervey joined Keller in the dissent.

Anonymous said...

I voted against both Hervey and Keller. They want to be tough because Judges are usually men and trying to fit in a man's job is tough.

I always read their opinions and they are always against the person who has been imprisioned. What they don't realize is most attorney's do not adequately represent their clients and do not follow through with the appeal process. Every person is allowed to appeal and the intent to appeal is filed after the trial and conviction but most attorneys, I should one in particular did not show up on the following court day to file the appeal and when the write was filed,the worst Judge in Harris Co. would not sign for this person to get the right to appeal. Both these judges voted with the TC opinion and denied the Constitutional Right of Appeal the 14th Admendment to this person. So, tell me again how fair you are Mrs. Hervey?