Are You Embarrassed Yet? Keller and CCA create new, absurdist rule on when cops can tamper with evidence

So after the recent Texas Court of Criminal Appeals ruling, when can police officers hand out drugs to encourage people to become snitches?

A commenter complained yesterday that I'd written about the Clinton Stewart case - a police officer who gave a portion of confiscated marijuana back to a suspect to convince her to become a snitch - merely from news and blog accounts, which was true. So this morning I took a look at the opinions myself, only to find the ruling more insidious, even, than I'd previously believed. Certainly the case may offer significant, bad precedential value when similar, future cases of evidence tampering arise. Naturally, Presiding Judge Sharon Keller wrote for the majority:

the evidence appears to be legally insufficient to show that appellant had the conscious objective or desire to impair the availability of the marihuana as evidence. The missing marihuana bud would not have changed the category of the offense, and the remaining marihuana was certainly enough to convict Lavender, if the State was interested in pursuing a prosecution. Indeed, appellant's conduct appears to have been motivated by the belief that Lavender would escape prosecution by becoming an informant, and as a result, the entire quantity of marihuana would be destroyed anyway. (emphasis added)

So here's the new rule in Texas, as I understand it: Officers who confiscate drugs from a suspect may return a portion of the drugs to them - for whatever reason, in this case to convince them to act as an informant - without being guilty of evidence tampering, so long as the weight of the drugs left in police custody would not change the level of offense the person is charged with.

For example, possessing between 4-200 grams of cocaine is a second degree felony offense, garnering a potential 2-20 years. So if an officer confiscated 150 grams of cocaine, the COCA majority wouldn't consider it evidence tampering unless the officer gave away MORE than 145.99 grams.

The court raised the possibility that the officer might have been charged with Class B delivery of marijuana, instead. But that charge, to me, doesn't seem to convey the same gravity toward official misconduct as evidence tampering. He didn't just deliver marijuana to entice an informant, in the bigger picture he delivered evidence.

I agree with the four judges in the minority that this new standard enjoys literally zero basis in Texas statutes. The minority opinion authored by Judge Paul Womack shows why this new standard amounts to judicial activism:

The Court's grafting onto the required culpability a requirement that the tampering change the punishment category is not anything that the statute requires. The statute could have said that a person commits no offense if he destroys a portion of evidence that falls between the limits of a punishment category. But it doesn't, and this Court has no authority to amend it.

This amounts to judicial activism at it's very worst, pre-selecting an outcome based on judges' affinity for the defendant then concocting a new legal standard to erase his conviction.

Think about it - what if it were cash instead of drugs? Under this ruling, an officer would not be tampering with evidence to return ill-gotten gains to a suspect if the amount returned didn't affect the penalty category of the offense. Who believes that's right (I mean, besides five Court of Criminal Appeals members)?

We've been seeing more and more 6-3 and 5-4 CCA split decisions in the past year. I believe that's largely because quite a few members of the court are beginning to realize Judge Keller has led them into a jurisprudential snakepit of judicial activism, setting precedents conservatives will regret if courts ever change hands to liberals or moderates. In the comments yesterday, Doran Williams predicted just such an outcome from the Clinton Stewart case:

There is a long standing rule applied by both civil and criminal appellate courts that the jury is the final decider/arbiter of facts. They can believe a witness or they can refuse to believe him. In this case, the jury clearly did not believe the defendant witness' excuse or explanation. So they found him guilty as charged.

Generally, courts will not disturb a verdict which is clearly based upon the jury's [assessment of the] lack of credibility of a witness. Courts have discussed that rule in terms of the jury being right there, sometimes only 20 feet or so from the testifying witness, watching his expressions and listening to his voice. Demeanor "testimony" is what courts have called this, and they have ALWAYS deferred to a jury's decision against the credibility of a witness.

Until now, as this all Republican, 'lawn order,' pro-law enforcement biased CCA tosses those rules -- and the unimpeachable reasoning which underlie those rules -- into the toilet.

This all-knowing, all-seeing Court, without the benefit of having seen or heard the witness, just takes it upon their omniscient selves to decide that cop told the truth. What did they base this on? Not facts. They were not present at trial. They based it upon a bias in favor of law enforcement and against people who use drugs.

In short, the CCA cheated. ...

Here is the ironic kicker to come. When the tide turns, and there are again liberals and moderates on the CCA, they will have this opinion by some authoritarian, right wing Republicans to cite as authority for reversing jury verdicts. I hope to live to see it.

Yes, judicial chickens have a way of coming home to roost. I hear a lot of foment by GOP judicial candidates about their dislike for judicial activism, but this amounts to judicial activism of the worst sort, and the worst part it is, at "Texas' Worst Court," it's common as dirt. This is a horrible ruling that essentially approves low-level corruption and evidence tampering by officers.