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.