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.