Tuesday, October 07, 2008

Travels in the Land of "Harmless Error": Hide your dildos, the Court of Criminal Appeals is in session

The Texas Court of Criminal Appeals earned coverage and some criticism lately from several corners of the blogosphere. Let's round up the highlights:

Robert Guest informs us that, at least for the moment, apparently, vibrators and dildos are illegal to sell in Texas, again, at least in the jurisdicition of the 13th Court of Appeals in Corpus Christi - this despite a Fifth Circuit ruling in February overturnings the CCA's rulings on the subject and declaring the law unconstitutional. Wrote Guest:
The federal 5th Circuit Court of Appeals issued an injunction in February declaring 43.23 unconstitutional. However, the Court of Appeals in Corpus Christi held that a federal court injunction is not binding on State courts. That is, until our state's highest criminal court, the Court of Criminal Appeals, rules that 43.23 is unconstitutional, the conviction still stands. ...

So, for now, dildos are illegal in Texas, again.
Now Texas state courts don't consider federal injunctions binding? Can secession be far away?

Meanwhile, former Dallas public defender Mike Howard, now an attorney at Howard & Woodruff, has begun profiling Court of Criminal Appeals cases on his law firm's blog, promising to analyze new cases on the hand-down list as they come up each week. An early post finds the court relying on its favorite stand-by decision - "harmless error" - to dismiss an objection to an "over the shoulder" critique by a prosecutor during closing argument that the defense attorney was a "liar." (A lot of people think Texas courts don't recognize the problems in the system, but that's not entirely true. The CCA routinely acknowledges that the system is rife with "error," they just consider a breathtaking amount of routine error "harmless.") Howard approved of another opinion reviewed, this one by Judge Cochran, which sustained a defense objection to including "conjecture" in a pre-sentence investigation report used in sentencing following a guilty plea.

In a blawggerly take on the Court of Criminal Appeals from outside Texas, Evidence Law Prof Blog looks on in amazement at a "seemingly misguided application of the prior consistent statement rule" by first the 2nd Texas Court of Appeals, then by the Court of Criminal Appeals which reversed the 2nd Court but injected its own erroneous analysis, says ELPB. Writes blogger and law prof Colin Miller:

I'm skeptical of the [2nd] Court of Appeals' conclusion that there was no charge that the complainant's testimony was improperly influenced. It seems that a claim that the prosecution "tricked" her into saying that her father sexually abused her could be construed as at least an implicit charge of improper influence, which would suggest that I would agree with the majority opinion of Court of Criminal Appeals of Texas in Klein v. State, which reversed the Court of Appeals' disposition. The problem is that the Court of Criminal Appeals of Texas made an even bigger error.

And its problem was that it did not find that defense counsel charged the complainant with being improperly influenced or having an improper motive; instead, it merely found that "[t]he record support[ed] a finding that these out-of-court statements were offered to rebut an implied charge of recent fabrication." In reaching this conclusion, the majority rejected the reasoning of Judge Cochran's dissenting opinion, which concluded "that the complainant's out-of-court statements to Todd and Cook 'could not possibly qualify as statements offered to rebut an explicit or implicit charge of recent fabrication' because no charge of recent fabrication 'for some improper reason' was made by the defense on cross-examination. ...

This reasoning is bizarre to me because it implies that you can have a recent fabrication due to a proper or at least benign reason. The word "fabricate" is generally defined as "to make up for the purpose of deception." Thus, if a party claims that a witness, like the complainant in Klein, rendered incorrect testimony because she was mistaken, her testimony would not be a fabrication because she would not have the purpose to deceive. ...

I think that defense counsel's position could be construed as an argument that the complainant was subject to an improper influence, but I don't see how it could be construed as an argument that the complainant's testimony was a recent fabrication that was somehow not based upon an improper influence or motive.

I'm not a lawyer, but a plain reading of rule 801(e)(1)(B) seems to support Prof. Miller's contention that a finding of improper influence instead of fabrication fits better with the facts of the case. However I don't know enough about the topic to say whether their error is "harmless." It certainly wouldn't be if the ruling later precluded claims of "improper influence" where "fabrication" is not an issue.

Finally, on the death penalty front, Capital Defense Weekly notes in passing an "Atkins remand" (to investigate whether the defendant is mentally retarded) by the Texas CCA in a death penalty case, and brings word of a dozen certs denied by the US Supreme Court in Texas death penalty appeals (i.e., cases the court declined to review). One case the Supremes decided not to consider included a bizarre church-state angle in which the jury foreman pulled out his Bible and began quoting scripture to convince fellow jurors to vote for a death penalty verdict.


Anonymous said...

I may have painted with too broad a stroke. Simple possession of dildo's is not illegal. It the "promotion" of said dildos that is verboten.

I may edit my post for clarity. However, the analysis of why dildo promotion is still illegal stands.

I'm hopeful that COCA will manage not to screw up this appeal. 43.23 is one of our state's stupidest laws and needs to be repealed. If not by our lege, then judicial fiat will do just fine.

Gritsforbreakfast said...

That's okay, Robert - I think to be safe everyone should definitely hide their dildos until the CCA gets their business right. ;)

FWIW, I should have picked up that distinction, too. But the part I was focused on was the 13th Court's homage to their secessionary tendencies. It's as though they took SCOTUS at their word in Medellin and now think federal court rulings (in addition to treaties) no longer apply to them!

Gritsforbreakfast said...

Oh, and I edited the post to clarify it was only selling dildos that's still illegal in the jurisdiction of the 13th Court.

Anonymous said...

"But the part I was focused on was the 13th Court's homage to their secessionary tendencies."

I don't think the federal/state issue is even a close question. The Fifth Circuit doesn't have general supervisory powers over state courts (except with regard to the parties before it). That doesn't mean that a holding that a law is unconstitutional wouldn't be highly persuasive -- but it wouldn't invalidate all future prosecutions either.

And as Mr. Guest points out, that is what might happen in this case -- the CCA, having been persuaded by the Fifth Circuit, might overrule its precedent. But until the US Sup Court says otherwise, the highest courts of the various states may interpret the Federal Constitution in a way that is in conflict with the various circuits.

I may be wrong on this, but I don't think so.

123txpublicdefender123 said...

Yeah, I have to agree with Anonymous and say that the COA was right. If you read their opinion, they even go so far as to say that they agree with the reasoning of the 5th Circuit. They, however, are bound to follow the CCA and the US Supreme Court. They are not bound to follow federal district or appellate courts. In a situation where the CCA has a precedent clearly on point, they cannot overrule the CCA. Only the CCA and the SCOTUS can overrule the CCA.

It's pretty clear from the opinion that they would have overruled the conviction if they could have, but they simply don't have the authority.

What will be interesting is to see if the CCA takes her appeal, and, if so, how they rule. I've always been fascinated by cases that the CCA deemed unworthy of their review that were then taken up by SCOTUS and reversed.

Until then, the poor clerk will apparently have to rot in jail where she was sentenced for a year (unless she is hopefully out on bail pending appeal)!

Gritsforbreakfast said...

I'm sure y'all are right, and that's consistent with what Robert wrote. It's the CCA, I guess, that wants to secede. ;) (The "secession" comment was actually an attempt at humor, by the way, though that apparently that wasn't clear.)

I don't understand, though, why, if the state was going to hang on to the old interpretation, they didn't just appeal up the case the 5th Circuit ruled on? And if SCOTUS denied cert, doesn't that mean the 5th Circuit's ruling stands? Or perhaps the original case is still pending, now that I think of it? I don't know it's status.

An off topic aside: I'm just checking in because I can't stand the UNBELIEVABLY boring debate any longer. I wish they'd scheduled a baseball playoff game opposite the damn thing!

123txpublicdefender123 said...

Scott, I'm not completely clear on the procedural history of the 5th Circuit case, but my vague recollection is that it only enjoins future prosecution. Also, a denial of cert from SCOTUS has no precedential value. It does mean the 5th Circuit decision stands, but it does nothing to change the CCA precedent. The only thing that can overturn the current CCA precedent that the law is constitutional, and thus help this poor defendant, is a CCA or SCOTUS opinion.

It seemed quite clear that the COA thought the law was stupid and unconstitutional but was constrained to follow CCA precedent. It seems to me that the real bad guys here are the prosecutors who don't just agree to vacate the conviction in light of the 5th Circuit decision.

I understand you were joking about secession. As many times as SCOTUS has had to tell the CCA that they actually mean what they say in their opinions, I would have to agree with you about the CCA.

Oh, and I hear you about the debate. Snooooooze.

Anonymous said...

For cripe's sake. Is it that men REALLY do want to control what women do with their bodies, or do we have some sort of ego complex that will not allow 'our' women to sexually gratify themselves?

yeah, I know this probably goes back to some stupid christian coalition, or some other false god, deity worship, cults book rules. Why in the world people cannot go about their business without a desperate need to control others in their private lives is beyond me.

Anonymous said...

Well, we all know that they want to be the only ones to f@#k us!

Anonymous said...

The Bible reading juror case is by no means unusual - there are plenty of other examples of jurors bringing in Bibles, quoting scripture etc. It's something that I wish trial counsel would talk about more during jury selection, and that courts would give better instructions on. None times out of ten, the courts find the use of Bible verses to advocate for death to be harmless error - but then to say that it was reversible error would be a big vote loser in jurisdictions where judges are elected and many of the electorate are church-goers.

Soronel Haetir said...

I see no reason that a juror should be forbidden from using the bible or any other work to try and convince other jurors that death is an appropriate sentence. It's up to the other jurors wether that argument has weight or not.

Now, if that juror were to use such a work in trying to convince on the point of guilt you would have a much better argument, but punishment is a significantly different arena.

Anonymous said...

"For cripe's sake. Is it that men REALLY do want to control what women do with their bodies..."

Wait, what? Women? Women use dildos too?


:) j/k

Anonymous said...

So... Im new to Texas... Selling Dildos is illegal...? Im confused cause what about those sex toy parties and places like Cindies and what not?

Anonymous said...

Selling dildos is illegal? sex toys are fun to spice up your sex life.