Note to Florida: Texas high criminal court not a model that should be emulated

Most of the criticism of the Texas Court of Criminal Appeals involves its spats with federal courts over the death penalty, its belated conversion to allowing innocence claims, and the troubles of its Presiding Judge Sharon "We Close At 5" Keller, who was assessed the largest ethics fine in state history for failing to disclose real estate she owned and corporate boards she sat on. But really, the reason the CCA most merits disapprobation isn't the public sins of its leader nor its institutional role as a Culture War flashpoint on the death penalty. It's that, day to day, the Texas CCA's notorious, virtually self-acknowledged pro-prosecution slant means Lady Justice decides cases with one eye peeking out from under her blindfold and her thumb on the scale. Their rulings are frequently so extreme they override those of Republican justices at the various Courts of Appeals, where jurists tend to exhibit a more healthy disrespect for overt judicial activism. At the CCA, often the point of their rulings seems to be affirming their activist proclivities, picking which side they think should win (the state) then constructing often strained, convoluted justifications to support their desired outcome.

Liberty and Justice for Y'all provides a good example of that bent in a decision  overturning a recusal order from the Second Court of Appeals after a trial judge had announced he would accept no plea short of the maximum sentence in the case. IANAL, but this seems like a no-brainer to me: You routinely see plea bargains reached during trial or even, occasionally, during jury deliberations. Refusing to plea before trial shouldn't mean a plea during trial should be prejudiced by arbitrary judicial constraints hostile to the defendant. But the CCA knew which side they wanted to win, then manufactured a hypothetical interpretation that it used to trump the lower court, stating that the trial court's prejudicial comments "could quite logically and reasonably have been a short-hand" for a sentiment the CCA would consider acceptable. So based on that hypothetical "could," they said the judge could stay. And if it had been the prosecution seeking recusal, there's little doubt they'd have hypothesized a "could" that would allow them to rule the other way.

Another recent example, also from Liberty and Justice for Y'all, involves a CCA decision that blogger B.W. Barnett said placed the subject of a police encounter in a no-win position. If the defendant had not complied with a police officer's command, he wrote, "there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here." That sort of one-sided decisionmaking over the last decade has become the general rule on the court, with victories by "moderates" (i.e, conservative, pro-death penalty Republicans who AREN'T judicial activists) becoming the rare, notable exception.

In Florida, strangely, their Legislature is considering splitting their Supreme Court into civil and criminal high courts along Texas' model, but based on our dysfunctional experience, that wouldn't be a good idea. Appellate judges who hear both criminal and civil cases IMO tend to have a more holistic view of the law and the impact of their rulings. The level of rigor applied to experts, for example, is generally much higher (and their testimony much more rigorously opposed by defense experts) in civil cases than in criminal ones. And hearing both types of cases gives justices insight into how slanted legal themes might affect the general public, as opposed to just the narrow subsection of the underclass who make up most criminal court dockets.

If I had my way, Texas would go in the other direction and collapse its high criminal and civil courts together, as is the case nationally and in most other states. The CCA's caseloads have been declining and many of the discretionary cases they take are simply opportunities for activism, not because there's a sea of unresolved legal questions out there. Texas' CCA is a Reconstruction-era anachronism and there's no real purpose or benefit any longer, if there ever was, from having two high courts in the state.