Not just movie magic: Why the CCA sided with 'Bernie'

Grits pledged to examine all the notable outcomes from Wednesday's Court of Criminal Appeals hand down list, so I suppose I should mention the Bernie Tiede case in which the CCA granted a new punishment phase hearing to the murderer subject of a (quite good) Richard Linklater movie starring Jack Black as the eponymous "Bernie" and Matthew McConnaughey as the DA whose pleadings are now before the court agreeing to reduce the penalty category from a first to a second degree felony. Tiede has been out on bail awaiting the court's decision and reportedly living in Linklater's house. The media blew up at his release in May. (See exemplar editorial pieces pro and con.)

In a surprising (to me) development, it appears the court may have used the state's new "junk science writ" to reach its conclusion, though the per curiam order did not go into detail. It merely said that the:

Applicant alleges there is newly available relevant scientific evidence that contradicts the scientific evidence relied upon by the state at trial, and that false evidence was presented at trial thus undermining confidence in the verdict at sentencing.

The trial court, after conducting a live hearing and based upon an extensive record, has recommended that applicant be granted relief in the form of a new punishment hearing. The State agrees that Applicant is entitled to relief.

The substantive debate played out in the dissenting opinion by Judge Sharon Keller and a concurrence by Judge Elsa Alcala, who ironically applied the same deferential standard to local prosecutors and the trial court that one normally sees from Keller and Co. when the state wants to hang-em-high. To be fair, Keller makes some excellent points in her dissent, calling on the court to exercise independent discretion instead of mindlessly parroting the prosecution's party line without justification. I've thought the same thing myself many times reading rulings in which she was in the majority, siding with the State for no other reason (at least publicly stated) than that she had the votes to do so.

Basically, here the State agrees it presented "false evidence" when an expert important to the prosecution's punishment-phase case told the jury that Tiede had an unremarkable mental health history. It turned out he was a victim of child abuse, state and defense experts agree. Since the prosecutor agrees false evidence was presented and the local trial court's findings support the claim, from my perspective the only news here is that the court did not hypocritically up-end its defer-to-the-state-no-matter-what approach when it benefited a defendant. A cynic might think that dynamic only plays one way.

Judge Alcala is turning out to be an important thought leader on the court and an intellectual counter-weight to Judges Keller and Keasler on the pro-government side. Perhaps her presence will make Judge Cochran's lamentable departure easier to bear.