Thursday, March 22, 2018

On the limits of tuff-on-crime ideology at the Texas Court of Criminal Appeals

One of Grits' favorite pastimes is parsing contentious Texas Court of Criminal Appeals decisions to better understand the dynamics and factions arising on various topics. Since nobody in the mainstream media routinely covers these cases, this usually involves tilling virgin soil. And such is the situation with Ex Parte Jeremy Wade Pue, which was decided on March 13 but has been ignored in the press. Mr. Pue was represented by an attorney from the State Counsel for Offenders.

Judge Bert Richardson wrote the main opinion, with Judges Mary Lou Keel and Sharon Keller authoring concurrences and Judge Kevin Yeary isolated by himself in dissent, which is a space he's increasingly chosen to occupy in recent cases. To me, this is perhaps the most significant change in the court's dynamic in the wake of the 2016 election, when Judges Keel and Walker joined the court.

While on capital cases, Judge Yeary has tended to be more defense-oriented, in more workaday cases he has proven himself a tuff-on-crime outlier, even compared to the Government-Always-Wins (GAW) faction, led by Judge Keller. Indeed, Yeary's pro-prosecutor stances are sometimes so extreme that even the traditional GAW faction members (Keller, Hervey, and Keasler) cannot abide them. That's what happened in Pue, where the state sought to uphold a 30-year sentence which, in light of the facts, clearly was improper.

The case involved an illegal sentence for evading arrest with a vehicle, which in Texas is a third degree felony punishable by 2-10 years. Two California cases were used as an enhancement under Texas law to increase the penalty to thirty years under the habitual-offender statute. But the California convictions were not "final," as required by Texas law, and the defendant's lawyer failed to appeal the issue. (Mr. Pue separately has also alleged an ineffective assistance claim.) The CCA majority said the sentence was illegal, and even the GAW faction agreed.

Judge Yeary would let the sentence stand, insisting the claim should have been raised on direct appeal and should not be alleged for the first time in a habeas writ.  Moreover, he made a distinction (which Judge Keel rightly considered spurious) between a sentence outside the prescribed range (for example, a life sentence for a third degree felony where the max should be ten years), and illegally using a prior conviction to increase the penalty outside the prescribed range. Keel called out Yeary for "inconsistent" reasoning, and he tried to respond in a footnote. But when you read them both, it's pretty clear she's right and he's confused. Even Judges Keller and Keasler thought so.

Further, Judge Keller believed Pue's lawyer performed ineffectively:
Because the conviction was not final regardless of what law applies, and because Applicant has no other prior convictions (aside from the two in California), I would hold that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.
Keller believed Pue's lawyer's performance was deficient on its face ("Given the circumstances, I would hold that there is no conceivable strategy for failing to challenge the prior conviction, and so, there is no need to remand for factual development.") Judge Richardson and the majority, however, noted that the issue was raised at trial and he was reluctant to allege ineffective assistance for not doing so on appeal because "there were existing intermediate Texas appellate court decisions to the contrary" about whether California or Texas law controlled which offenses could be used for enhancements. (Going forward, the answer is "Texas'.")

As case law, Pue does little more than confirm common perceptions about which cases qualify for an habitual-offender enhancement. But it certainly reveals telling dynamics on a court suffering from strained personal relations and often-bitter legal disagreements. We're beginning to see previously unplumbed limits regarding how far certain members of the court are willing to go just because a prosecutor asked them for something.

Will Judge Yeary's extremist views solidify control of the court among moderates like Richardson, staking out positions so harsh and unyielding that they drive even the GAW faction toward more centrist stances? Time will tell but, to this observer, that looms as an increasingly likely (and admittedly unexpected) possibility.


Gadfly said...

Wow. If even a Keller thinks defense counsel was crappy ...

James S. said...

Just a quick aside. Judge Keel identifies as male (using the trendy language of the moment....).

James S. said...

Whoops. Egg on my face. Was thinking of something else. Of course she's a she.

Anonymous said...

I don't care what bathroom she wants to pee in, so long as my rights aren't the urinal cake.

Kuato said...

The advocates for a police state like to use the excuse that Texas is "tuff on crime". No. The government of Texas is tuff on the people of Texas. If Texas was tuff on crime there would be many prosecutors and judges in prison for their crimes against both the people of Texas and the Texas Constitution. Grits - Your article was very well written.

Gritsforbreakfast said...

@Gadfly, Keller often thinks defense counsel is crappy. When the state is clearly in the wrong, her default is often to blame the defense lawyer for not catching it instead of blaming the state for doing something improper. This concurrence follows that pattern.

Anonymous said...

Grits, I don’t understand why the regular Texas media doesn’t cover these interesting cases and the underlying issues. Is it because journalists can’t read? Won’t read? Don’t know what to read? Can’t be made to read? Rather smoke weed?

I predict that in two generations civilization will be appalled at two things in Texas. First, the inhumane treatment of prisoners and second, the erosion of our rights. It will begin as a curiosity and archeological dig. The researchers will be amused at the details surrounding some particular case. They will conclude that there’s no way the case is representative and so explore further only to learn it was far more barbaric, uncivilized and arbitrary then anyone could imagine. There will be a rush to find the worst of the worst cases which will be drug out to parade in front of the conscience of the people.

Then again maybe Grits is that early pioneer highlighting our failures to govern ourselves but everyone refuses to read....

Gritsforbreakfast said...

I think your last line explains it, 7:30. I'm intentionally plowing untilled soil, in part in order to DEMONSTRATE to journalists what's possible. That's been a primary goal of this blog since its inception.

john said...

It won't take two generations, once Radio Dan Patrick makes his move to Emperor. But who knows, some things could be rosy.
Yet, Judges are always reluctant to criticize judges, as they don't want to draw the attention of honest, thinking people, let alone anyone up the power chain.
Because We The People of Texas won't riot, worse and worse lawyers take power---but as indicated with Patrick, NOT ONLY lawyers.
And Texas ensures you will be outrageously punished, if you survive, for conflicts with the courts and their lapdogs. Judges long ago feigned immunity from accountability, and those in power didn't riot, either. No one in power seeks to lessen his power.
And maybe journalists don't want to draw fire, or the won't get assignments to "report" the court "news."