The vote on the Court of Criminal Appeals interpreting Texas' junk science writ looks to be ridiculously close - probably another 5-4 outcome - judging from oral arguments this morning in Ex Parte Robbins. But no one, I think, could reasonably guess after today's arguments which way it might go.
Neal Robbins' attorney Brian Wice called recanted testimony from Dr. Patricia
Moore the lynchpin of the case and his opponent, Bill Delmore, agreed
that if Dr. Moore was wrong (which is her revised opinion about her original testimony), Robbins gets relief. But the discussion from the judges indicated the outcome likely won't be that simple, even if it should be.
The judges who wanted to debate legislative history last go-round shifted gears, for the most part, in light of passage of HB 3724 codifying the court's ruling in this same case from last fall. Judge Elsa Alcala read aloud from the bench the senate bill analysis specifically declaring the bill's intent was to codify their decision.
There was some grumbling, though, particularly from Judge Sharon Keller, that the Legislature couldn't interpret its own statutes post hoc, though the sort of verbal commentary about intent she was describing is quite different than the formal act of passing a second law codifying a court's interpretation of a first one. There was additional discussion of whether they should consider HB 3724 at all before the governor signs the bill, and a surprising level of willful indifference regarding the implications of the new legislation.
Still, with the legislative intent argument weakened, Judge Michael Keasler hoped to change the focus to a harmless error analysis. And that seemed like the avenue which may prevail if the state wins this rehearing, even though it wasn't even part of the discussion last year. How it could be harmless error that a medical examiner wrongly called a death a homicide in a capital murder trial, it's hard to say, but that's where some judges wanted to go.
Indeed, as Mr. Delmore said, it's hard to imagine the outcome at trial would not have been different if no one could say the death was a homicide. But granting that didn't seem to dissuade Judge Keasler, in particular, from pursuing the harmless error line of reasoning.
From their comments at this morning's arguments, I'd guess the four dissenters still on the court - Keasler, Hervey, Keller and Meyers (who was absent today) - will all stay in opposition to Robbins' petition. Meanwhile, David Newell voted against rehearing and seemed sympathetic to the implications of the Lege passing HB 3724. If he sides with the Robbins II majority, that makes Yeary and Richardson the two swing votes. Richardson's questioning was brief and unrevealing; Yeary's comments cut both ways. I couldn't begin to guess how they might vote. This one's going to be tight.
MORE (6/4): A Dallas News staff editorial encouraged the Governor to sign HB 3724. See also coverage of oral arguments from the Houston Chronicle's Mike Ward.
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