CCA: TX junk science writ can't challenge bad forensics at death-penalty sentencing

The Texas Court of Criminal Appeals today adopted a particularly ungenerous interpretation of Texas' so-called "junk science writ" (Code of Criminal Procedure 11.073) to say that habeas challenges may only confront junk science used in the guilt/innocence phase of a conviction, not in the sentencing phase.

As a practical matter, this mainly excludes use of the writ to challenge evidence in the sentencing phase of capital cases, where "special issues" supporting the death penalty must be proven "beyond a reasonable doubt" just like with the adjudication of guilt. For most other felonies, the judge or jury may choose from a range of sentences without facing additional layers of proof.

Judge Keller's majority opinion carried six members of the court. Judge Richardson authored a concurrence, joined by Newell and Hervey, to say this was a "harsh result" and arguing that the Lege should expand access to the writ to include the sentencing phase. Judge Alcala wrote another despair-tinged dissent, joined by Judges Meyers and Johnson.

Because after all, just because the state relied on junk science to secure a death sentence, why should that death sentence be overturned after that evidence is debunked? It's not like there's anything important at stake, right?

Having been involved with the early drafting of the statute in question back when I was Policy Director at the Innocence Project of Texas, Grits must admit that nobody on either side of the negotiations ever contemplated this issue and I'd never considered it before this case came up. (The capital folks weren't much involved with the original bill and, in truth, if they'd been its big promoters, it would have been unlikely to pass.) I can also say for certain that nobody involved in the negotiations was operating under the assumptions Judge Keller hypothesized based on the court's DNA testing jurisprudence. The subject simply wasn't ever considered.

Because, as a practical matter, the Lege expressed no "intent" one way or another, I suppose the CCA judges get to do what they want. And in general, what they want is to side with the state and wherever possible issue what Judge Richardson called a "harsh result."

Bottom line: This was a judgment call. They could have interpreted their writ authority more broadly, either on the textual grounds Judge Alcala proposed or just in the interest of justice (in the absence of legislative intent either way). So they could pick whatever outcome they wanted, and each of them did.

For my part, in retrospect, the reason this never occurred to me is that we were amending the habeas corpus statute, which generally challenges convictions from long ago for which all the inmates' direct appeals have been exhausted. And habeas can challenge both guilt/innocence and sentencing issues. That's why, though IANAL, the distinction championed by the CCA majority never occurred to me, nor to any of the numerous attorneys who vetted the bill during the process.

Though Judge Richardson called on the Legislature to change the law to allow use of the writ in the sentencing phase, in recent years, the court's demands for legislative action haven't carried much weight. (I plan a post in the near future outlining requests for legislation from several CCA dissents and concurrences.) OTOH, the Legislature in 2015 amended the junk-science writ statute to preempt meddling by the Government Always Wins faction of the court, so perhaps they'll do so again.

IN OTHER CCA NEWS:

The court granted Sonia Cacy's actual innocence writ, overturning her junk-science based arson conviction. Judge Yeary, joined by Presiding Judge Keller, was moved to write a concurrence declaring that, even though Cacy had met all the prongs of the court's "actual innocence" jurisprudence and deserved relief, he wouldn't personally use the term "actually innocent" because her innocence couldn't be demonstrably proven, all that could be shown was that all the state's alleged proof of her guilt was flawed and proved nothing. See coverage from the Dallas Morning News, the Austin Statesman, and Texas Monthly.

Just to say so, the state's compensation statute uses language from the court's "actual innocence" jurisprudence to trigger when exonerated inmates get compensation. So if Judges Yeary and Keller want to move away from that phrasing, the Lege will need to adjust the compensation statute so that it continues to pay the exonerees whom the legislature intended to get that money. This concurrence looks like the beginnings of a back-door method of thwarting legislative decisions about innocence compensation at some future date when the pair can convince three more judges to join their interpretation.