Tuesday, September 03, 2013

Dearth of small-government candidates in Court of Criminal Appeals races

Of all the state elections up in 2014, the Texas Court of Criminal Appeals races haven't received nearly the attention they deserve. They're the reason I'm voting in the GOP primary this go-round even though most local Travis County races are decided in the Democratic primary. Rumors circulated widely this spring that all three incumbents whose terms are up would step down - Judges Tom Price, Paul Womack and Cathy Cochran, all of whom come from what passes for a moderate wing of the all-GOP court. Judge Cochran is the only one who has so far formally announced her departure.

The GOP primary is all that matters here: Barring a miracle, no Democrat (including Wendy Davis) will win a statewide race in Texas in 2014.

Which doesn't mean there aren't important issues at stake. In recent years, many of the CCA's most critical, high-profile cases have been decided on narrow 5-4 votes, with Presiding Judge Sharon Keller and a persistent faction of two to three reliable sidekicks on the side of the government, pitted against a handful of traditional conservatives who're slightly more skeptical of state power. That's makes this election especially pivotal: Some of those 5-4 majorities could flip the other direction pretty quickly if Price, Womack and Cochran all jump ship at once and Sharon-Keller clones, or worse, end up replacing them.

Lined up to challenge or replace Judge Price in Place 3 is San Angelo District Judge Barbara Walther, whose biggest claim to fame was approving the most sweeping search warrant on American soil since King George III. Walther allowed indiscriminate searches of dozens of homes and seizures of hundreds of children at the YFZ Ranch, operated by a polygamous Mormon sect called the Fundamentalist Latter Day Saints and led by widely recognized nutball and pedophile Warren Jeffs. The Third Court of Appeals tossed out her orders seizing the kids but upheld the search warrants in the criminal cases. Walther was unapologetic and exhibited a fervent bias toward approving extraordinary uses and abuses of state power. Veteran San Antonio District Judge and former AUSA Bert Richardson has also jumped into the race. I've heard good things, but only third-hand, hearsay stuff. Until further notice, though, count me in the "Anybody but Walther camp."

In Place 4 on the court, Judge Womack is widely expected to retire and journeyman appellate prosecutor Kevin Yeary along with Jani Jo Wood from the Houston Public Defender's office have lined up to run for his slot. Yeary has worked in the Dallas, Harris and Bexar County DA appellate divisions while Wood comes from the PD's office and more generally, the criminal defense bar. So far, that's the main race where one might project real ideological diversity among the candidates and perhaps even a debate over small-government principles vs. the court's decidedly pro-government record. (Okay, probably not, but a blogger can dream, can't he?)

Finally, only two GOP candidates so far have stepped up to run for retiring Judge Cathy Cochran's Place 9 seat, both of whom bring a pro-government bias to the bench.: 25th Judicial District Judge W.C. "Bud" Kirkendall, who before his election to the bench was a 21-year elected District Attorney and former president of the Texas District and County Attorney's Association, and Harris County ADA David Newell. Grits would still like to see a more liberty-oriented, small-government conservative step up to the plate in this race. These two could split the pro-government vote if a more liberty-minded candidate stepped in at the last minute.

As things stand, among these three races, there are candidates with significant prosecutorial backgrounds and/or pro-government predilections running in each of them. Two candidates - Newell in Place 9 and Yeary in Place 4 - were among the five prosecutors profiled in TDCAA's The Prosecutor in 2011 (publishing their replies to the fawning question, "Who is your mentor?") There's only one race - Place 4: Yeary vs. Wood - where voters are offered a more clear-cut choice by a liberty-minded contestant.

Voters need more choices in these races. More than a few folks with whom Grits has discussed the races have said they couldn't afford the pay cut if they won, which itself is a sad commentary on the state of the judiciary. The logistics of gathering valid signatures in all fourteen court of appeals districts becomes more daunting with each passing week, so anyone who wants onto the ballot in one of these races would need to start soon. It would be a shame if the GOP primaries came and went without small-l libertarian conservatives stepping forward to give GOP primary voters a choice in those other two races.

ADDITIONAL THOUGHTS (9/4): The Dallas Morning News recently offered up a staff editorial titled, "Transforming Texas' criminal justice landscape," praising the Texas Legislature for recent reform-minded bills. But nothing the 83rd legislature just did would or could have remotely as much effect as would a pro-government sweep by prosecutors and their enablers in the 2014 Texas Court of Criminal Appeals races. Grits has long said that the Texas CCA as presently constituted consists of two wings: A conservative wing and a more or less totalitarian one, the latter of which sides with the state almost reflexively in every conflict. Two wins by the statist wing would secure for Keller's faction a firm majority. Three victories by reliable pro-state votes would cripple the conservative wing heretofore led by Cochran, Price and Co. And that, my friends, could truly, radically transform Texas' criminal justice landscape, if not in the sanguine fashion envisioned by the Morning News editorial board!


Anonymous said...

I have had a number of cases before visiting San Antonio District Judge Bert Richardson, including a jury trial. Let me say that he is extremely fair, wouldn't allow the prosecution to get away with anything, and he knows the law and how it applies. I can't say enough great things about this Judge and I have no connection to him except that he has been on the bench several times as a visiting judge when my cases were presented. I was not aware that he was a former AUSA. I would highly recommend him from my perspective.

Anonymous said...

... and I've had a couple of cases before Bert Richardson and would say precisely the opposite. It's rare to encounter an individual so truly incapable of appreciating that there is any legitimate perspective other than that of the government. He has a tendency to reflexively grab at the first legal source that comes his way that will support the way he wants to rule, regardless of other sources of information or argument. And try finding him on a Friday afternoon ... or getting him to actually think about an issue ...

Anonymous said...

I tried cases before Judge Richardson and found him to be fair. He knows the law and follows it. I would vote for him twice if I could.

Anonymous said...

Bud Kirkendall is a New Braunfels Judge?

Anonymous said...

I don't know about the "pro-state" and "liberty" labels you used, but I have known David Newell to be a man of great personal integrity and an ardent student of criminal law and procedure. I just don't think these generalized labels do the integrity of the candidates any good.

I've known David since his time as a law school intern and beginning prosecutor, and I think he might be the most ernest hard working lawyer I know.

I don't want a judge with an agenda or seeking to be like the Oracle in the Matrix movies (to balance the "Keller" faction). I want a judge who is a fair minded person who will follow the law and do the right thing, no matter what side the right thing is on.

David Newell is such a lawyer, he will do the right thing and be damned for it if he must. Isn't that the kind of character we want in a judge?

Out of fairness, I must say that Bud Kuykendall is also a very fair minded jurist. I handled a very complex matter before him about 8 years ago and was very impressed with his demeanor, frankness and absolute fairness in the proceeding. He was a legendary and honorable prosecutor and has been an acclaimed trial court judge for near a decade.

Despite my great affinity for Judge Kuykendall, I've pledged my support in this one to David Newell because all he has been doing for most of his legal career is criminal appellate law. I value David's judgement in these matters and indeed, for some years he has authored a regular column in The Texas Prosecutor explaining recent interesting and difficult appellate opinions. Likewise, he is a frequent lecturer at prosecutor and other seminars on appellate cases, and I believe he is a very well respected appellate lawyer among his fellow prosecutors, the defense bar and the bench.

Greg Gilleland

Gritsforbreakfast said...

Greg, you want a judge who shares YOUR agenda; that's a bit different from wanting a judge with no agenda.

The fact is, further filling the court up with a bunch of prosecutors in robes is a bad idea precisely because those folks have been pushing an agenda, hard, and I'd prefer not to send them more allies to join their quest to maximize state power.

Anonymous said...

The nice thing about the visiting judge job is if one does not want to work on a Friday afternoon, they don't have to. If he is not working on a Friday afternoon, it's because he doesn't have to, of course he is not getting paid (unlike the rest of normal governmment workers who are not at work, but still getting paid!). I bet you could find him in the Travis County Courthouse this afternoon and it is after 5. As for trying to find him in any one place on a Friday afternoon, good luck, he works all over the State.