Divided Court of Criminal Appeals in flux

Your correspondent was quoted in the lede of a Dallas News story Dec. 31st by Brandi Grissom titled "Texas top criminal court halted more executions in 2015." The underlying newshook for that statement: "Texas courts halted 14 executions [in 2015]. Two of those were later rescheduled and carried out." But, "That’s nearly twice the number of stays granted most years."

Brandi quoted Grits declaring that “There’s absolutely been a change, and we’re still seeing where the splits are.” I did say that, but in our conversation I tried to cabin my comments to non-capital cases, hesitating to comment on a specialized area of the law that I don't typically follow (and which is the topic of other blogs).

That said, it's undeniable there's been a change on the court and we're waiting to see what the splits are. Three swing votes were replaced by two appellate prosecutors and a long-time judge considered more moderate. And it takes time for different issues to reach the court and for them to engage in the behind-the-scenes politicking to find five votes. For example, this court still hasn't interpreted Texas' new junk science writ.

At the same time, it should also be acknowledged that everyone on the CCA was elected as a Republican and all are ardently pro-death penalty; we're dealing in matters of degree from prosecution-friendly judges to a faction which is reflexively pro-state in nearly all instances.

One case Grits mentioned to Brandi that didn't make it into the story was a new Fourth Amendment case, State v. Michael Rendon out of Victoria County, which was decided 5-4, perhaps presaging how this group of nine may break down on similar, future judgment call cases.

The case involved bringing a drug-sniffing dog to the front door of an apartment in a multi-family complex. In Florida v. Jardines, SCOTUS clearly held that would be an unconstitutional search if targeting a stand-alone domicile. But the state claimed the public walkway outside an apartment was fair game.

Five of the nine CCA judges, led by Judge Elsa Alcala, disagreed (read her majority opinion). Two of the three new judges on the court - Bert Richardson and David Newell - sided with her (Richardson wrote a concurrence). Meanwhile, rookie Judge Kevin Yeary wrote a dissent joined by Keasler, Hervey, and Keller. Grits' fear is we'll see those four names together with increasing frequency as a voting bloc, meaning the maximize-state-power faction of the CCA need only pick off one other judge on any given issue to prevail. Before the moderate exodus from the court during the last election cycle, that faction needed to pick up two additional votes.

OTOH, for constitution-loving tea-leaf readers, the Rendon outcome offers some slim hope. If two of the new judges sided with the state, Grits might instead be speculating that the pro-government-at-any-cost faction had already regained control of the court as a result of the last election. Instead, my judgment is that the court is divided and we don't have enough data to predict how the new judges might vote on any given topic.

All this is pure speculation, of course. Grits has no way to know how any given CCA judge may vote on any case, heaven knows! Frequently I can't even tell after hearing oral arguments (like on the junk science writ).

That was part of my point to Brandi: We don't have a lot of cases yet from which to judge the new judges. However, Keller, Hervey, and Keasler generally vote as a bloc. If Yeary routinely joined them, that would create the pick-off-one scenario described above. And with Cheryl Johnson and Larry Meyers leaving after next year, that will change the dynamic further. (She's stepping down; he switched parties and will run as a Democrat, which is the same thing.)

So the court will be in a period of flux in 2016 and its long-term trajectory may not be clear until 2017 or after.

Capital cases are sort of their own deal and I can't speak to them. But from Grits' perspective, trends on Texas' high criminal court remain uncertain and aren't necessarily headed in the same reform-minded direction that legislative conservatives more openly embrace.