Sunday, January 06, 2008

CCA Judge Cathy Cochran responds to Grits' criticisms on workload

Reacting to Grits' criticisms last week that the number of discretionary review cases before the Texas Court of Criminal Appeal had declined during a period when the overall criminal caseload had grown, CCA Judge Cathy Cochran sent me an email this morning, published below in full. I may have a fuller reaction later, but for now let's devote this post to her substantive response:
I would like to thank you for your interest in the administration of the Texas Court of Criminal Appeals. As a member of the CCA for the past six years, I have felt that the responsibilities and administration of this court are widely misunderstood. Your blog of January 4, offers me the opportunity to set at least one small part of the record straight.

I fear that you have misunderstood the process by which petitions for discretionary review are reviewed by the CCA. The total number of petitions for discretionary review that were filed with the CCA in fiscal 2007 was 1,661. The court has no control over that number. Both defendants and the State have a statutory right to file such petitions. The Court granted 149 petitions–that is, it agreed to hear 149 new discretionary cases in 2007. By comparison, the total number of cases filed in the U.S. Supreme Court during its 2006 Term was 8,857, and it heard 78 civil and criminal cases. During fiscal 2007, 831 petitions for review (equivalent to discretionary review) were filed in the Texas Supreme Court; it agreed to hear 138 of them. According to these statistics, the CCA granted review of more discretionary cases than either the U.S. Supreme Court or the Texas Supreme Court. The Texas Supreme Court agreed to hear a higher percentage of discretionary cases than the CCA, and the U.S. Supreme Court agreed to hear a much smaller percentage of its discretionary cases.

In addition, the CCA received 5,489 post-conviction applications for a writ of habeas corpus and resolved 6,158 such writ applications (including some pending from the previous year). It also resolved 82 death penalty applications for writs of habeas corpus, and wrote opinions resolving 19 direct appeals in death-penalty cases. The Court reversed the conviction or sentences in four of those death-penalty appeals, approximately 20% of the total. This was by far the highest reversal rate of death penalty cases in the past seven years.

The raw number of petitions filed by both defendants and the State for discretionary review has decreased since its high in 2000 of 2,271, thus it is not surprising that the 170 petitions granted in 2000 was higher than the 149 the CCA granted in 2007. The same seven-year decrease in appellate filings occurred in the Texas Supreme Court as well, although it agreed to hear a greater percentage of cases in fiscal 2007 than it had in prior years.

The CCA has not conducted a specific time/workload study, but in my experience, the work involved in writing the 575 opinions we issued last year (the Texas Supreme Court wrote a total of 170 opinions) and reviewing and resolving 6,158 applications for writ of habeas corpus is significant. In other words, a nine-member court has a limit to the number of cases and writs that it can adequately process in a year given the time it takes to perform this and other administrative functions. We may be able to increase the number of cases that we agree to hear in a year by a small percentage, but at some point we would be exchanging quality for quantity under the law of diminishing returns.

The number of direct criminal appeals filed in the fourteen Texas courts of appeals has also decreased in the past seven years. The total number of direct criminal case appeals filed in 2000 was 7,163, versus 5,999 in 2007.

You are correct in noting that the total number of felony criminal cases filed in the district trial courts in Texas has increased in the past seven years from 222,882 in 2000, to 285,019 in fiscal year 2007. How can one account for the fact that, although more criminal cases are being filed now, fewer appeals are taken? There are many possible reasons for this over-all decline in appeals, but one of them may be that the CCA amended the rules of appellate procedure to ensure that, if a defendant has no statutory right of appeal, the trial court will certify that fact and no appeal may be filed. Thus, the county need not waste the public’s money to appoint a lawyer to represent a defendant for an appeal he has no right to pursue, and the county need not pay for the compilation of the clerk’s record or the transcription of a reporter’s record. Formerly, the filing and subsequent rejection of statutorily unauthorized appeals had wasted an enormous amount of judicial time and effort, and it cost the local and state taxpayers a great deal of money which could be invested in useful ways, such as: paying court-appointed appellate defense attorneys more for filing authorized appeals; paying court-appointed appellate defense attorneys for filing PDRs in the CCA; investing resources in a public defender’s appellate office; paying court-appointed defense attorneys more for their trial-court representation or more for investigative expenses or expert witnesses. And so forth.

I do not have access to information about whether this shift in resources– to produce other benefits for defendants–has occurred, but I suggest that this is a reasonable possibility given the reduction in statutorily unauthorized appeals. I hope that “Grits for Breakfast” will continue to participate in the ongoing, well-informed, public policy debate concerning the best allocation of our finite criminal justice resources.
Thanks, Judge, for taking the time to write and contribute to the debate on this blog.


Anonymous said...

A very well written nuatral article. This judge does seem to get the bigger picture. Referring to where the saved monies need to go and also the various new rules regulations and laws that have help shift the number of appeals to those that are real appeals. Kind of nice to hear from the source and not the media. Enjoyed this article.

Anonymous said...

Thanks, Judge Cochran.

Anonymous said...

OK, the statistics look favorable. The question I have is: When did the courts begin or when will they begin to pay criminal defense attornys to file PDR's?

How many of the PDR's, appeals and habies corpus petitions resulted in a reversal of a trial court decision? Not many I'd guess otherwise I expect Judge Cochran would have mentioned that.

The crimianl court trials result in guilty verdicts a high percentage of the time, like 98%. I do not for a moment believe 98% of citizens charged with crimes are guilty. No organization or system of justice can possibly be that good!

The entire front end process is designed to support a plea bargain. The CCA should be more careful about an appeal when the accused has taken the huge risk of going to trial. Instead, the CCA supports the plea bargain by their record of support for the lower courts.

The DA's offices, District Courts and the Court of Criminal Appeals run rough-shod over the rights of the poor and ignorant. Statistics do not tell the whole story.

Anonymous said...

So I guess it's a good thing that they actually touch fewer files. That way they make fewer mistakes.

Dear Judge Cochran:

Please address Judge Keller's shenanigans and the policy of resistance to exonerations due to new evidence.


The rest of the world.

Michael said...

Judge Cochran's comparison of the percentage of PDRs granted by the CCA to the percentage of petitions for certiorari to SCOTUS leaves me cold. SCOTUS's lackadaisical workload started during the Rehnquist administration and is not getting better under Roberts. At this rate, within twenty years SCOTUS won't be granting cert in any of its cases. But that Court's lack of a work ethic isn't what your original post was about.

Anonymous said...

to anonymous who wrote the comment on, "The crimianl court trials result in guilty verdicts a high percentage of the time, like 98%. I do not for a moment believe 98% of citizens charged with crimes are guilty. No organization or system of justice can possibly be that good!" - BRAVO!!! I completely agree with you and would like to see the system changed to support the actual idea of "innocent until proven guilty". The current system does not currently support this ideal, but instead is supporting the ideal of "guilty until proven innocent".

Anonymous said...


As a staunch States' Righter (n other words, a moron who still has hope for the 10th), I'm glad the Supremes are doing less. That is actually contrary to the Bush Administrations goals of making his policy the law of the land in every state, as he tried with Schiavo and with gay marriage when Mass. said it was OK but he wanted a constitutional amendment.

But again, a smaller workload means nothing of the actual results are terribly off, and the CCA should in no way say their laziness is acceptable just because others don't grant that many writs either.

CC said...

There appears to be a basic misunderstanding of what goes into resolving the caseload Judge Cochran described in her note. Rage, to call that Court lazy is a misstatement.

When Judge Cochran cites the numbers of writs of habeas corpus that Court handles, she is speaking of an enormous volume of work. Some writs take months for prosecutors and defense attorneys to prepare, and only then do the judges of the CCA get to begin reviewing that work. This review, which, by the way, is of the legality of the prisoner's confinement, can sometimes take quite a while because the Court must read and digest the entire transcripts of both the trial and any subsequent habeas proceedings. Other times, the preparation and review of the writ is quite cursory, as many of the writs (and I am speaking from experience) are totally baseless and are from prisoners desperate to be free despite their guilt. In any event, dealing with the writs alone involves a substantial time and manpower commitment for the court.

Then, the judges on the CCA have to worry about the small task of, hmm, deciding the common law in criminal cases in Texas. No big deal, right? Just spit out those opinions, huh?

Others, your snips at the CCA and the US Supreme Court for not granting review of enough cases just miss the reality. They are granting review in fewer cases for many reasons--many important issues have already been decided, fewer appeals are being filed in the first place, and these are discretionary review courts (courts who must, by their own rules, be choosy in what they hear). I guess my point is -- these folks are not in any way lazy. They are beholden to judge the credibility of thousands of totally baseless writs of habeas corpus while at the same time separating them from the truly worthy applications for the Great Writ and at the same time are responsible for the development of the common criminal law of Texas. Give them a break--and understand what goes into their jobs before you start attacking them.

Not that it'd means much coming from me, but thank you, Judge, for writing in.

Anonymous said...

No big deal, right? Just spit out those opinions, huh?

I know too many clerks to believe that the judges do too much of the work. Being a judge is a cushy job. It's the parties that do all of the work.

Give them a break--and understand what goes into their jobs before you start attacking them.

We understand plenty. If they think their burden is too great, they should step down. Like I said, I have no problem with them doing less work, because that means they have the potential to screw up fewer things. But their policies and result-oriented decisions have nothing to do with their actual workload, and are a disgrace. You're just making excuses for them. "Give them a break" my foot. How about they follow the law a little more often, then we'll give them a break.