Tuesday, November 27, 2018

Checking in at the CCA: TX high criminal court hasn't posted oral-argument videos in nearly six months, and other stories

Since your correspondent left the Innocence Project of Texas, I haven't tracked the Court of Criminal Appeals hand-down lists nearly as closely as at times in the past. But here are a few recent items that merit Grits readers attention.

Hiccup in publishing CCA arguments video
Last year, the Legislature mandated that oral argument videos from the Texas Court of Criminal Appeals should be recorded and posted online. But the last ones available as of this writing are from June, and court staff don't know when they will resume posting them.

I'd noticed the discrepancy because my podcast co-host, Mandy Marzullo, and I had hoped to do a segment on the use of "shock belts" in court following oral arguments in the James Calvert case, which was argued Sept. 19. But the recording is still not available.

Grits was told by court staff that the failure to post after June is because of "trouble with the audio." The Office of Court Administration, I'm told, is working on the problem. But it's now almost six months since they stopped posting oral arguments. Surely that should have been enough time to implement some sort of Plan B to begin recording again.

Shoplifter acting alone can't commit organized crime
Judge Elsa Alcala recently prevailed on the rest of the court to declare that a single episode of solo shoplifting, in which the defendant acted by herself and not in concert with others, did not qualify for enhancement for punishment as "organized retail theft." Here's her opinion, and Judge Keller concurred. Judge Yeary alone dissented, attempting to stretch the bounds of the statute far beyond reason, good judgment, or the well-documented legislative intent behind the statute. (Upon reading his opinion, I could not understand why he would choose to die alone on that hill.)

We're really going to lament Judge Alcala's departure from the CCA once she's gone. She's become an intellectual leader on the court who will be sorely missed.

Five-member CCA majority bucks GAW faction, trial court to declare defense counsel ineffective
An unpublished, per curiam opinion garnered four dissenters (the entire Government Always Wins faction) but no dissenting opinion earlier this month. The defendant alleged his trial counsel was ineffective because of his "failure to note that the foreman of the grand jury was also empaneled and served as the foreman of the trial jury, failure to file pre-trial motions to suppress, failure to object to the introduction of Sheriff’s Department offense reports into evidence, failure to present alibi witness testimony, and failure to advise Applicant that the decision of whether or not to testify was his to make."

The trial court in Newton County recommended denying relief. But five members of the Court of Criminal Appeals decided to overturn the conviction, granting the defendant a new trial. And whatever reasons Judges Keller, Hervey, Keasler, and Yeary had for dissenting, they chose not to share them.

5-4 is close, and the story line about the grand jury and petit jury having the same foreman is a twist I've never heard before. Nor is it typical for an unsigned, per curiam opinion to have four dissenters, much less for none of them to articulate the reasons for their dissent. The dynamics surrounding this case imply a lot of backroom drama, even if there's not much paperwork to document it.

Paxton prosecutor legal-fee decision may impact indigent-defense cases
The case over legal fees for special prosecutors in the Ken Paxton indictments perhaps predictably was decided based on political rather than legal considerations, with significant unintended consequences potentially resulting. The court's majority was under pressure from Republicans to shut down the prosecution of the state Attorney General, siding with pols in Paxton's home county to refuse to pay special prosecutors their legal fees. See coverage from the Texas Tribune.

Judge Mary Lou Keel seemed fed up with her colleagues in the majority, accusing them of re-ordering and re-wording statutes and case law to "mask" their real meaning and "disregard" the clear intent of the statute. I thought she made mincemeat of the central argument in Judge Bert Richardson's concurrence.

Both she and Judge Alcala made the case that the majority opinion would impact indigent defense payments. Alcala declared the opinion was "effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, and that will likely result in more cases of ineffective assistance of counsel."

Not only was the court majority legislating from the bench, Alcala observed, but it was doing so badly. "It is improper for a decision granting mandamus relief to create new law, but it is an even more dire situation when the new law, as here, results in manifest injustice due to its newly created policy."

The majority botched the issue so badly it could even require legislative intervention. It's possible counties won't be able to find lawyers to take on complex cases if they may be limited to low, flat fee based on standardized schedules, no matter how many hours they put in on a case.


Anonymous said...

I really can't see how a judge can simply ignore the fee schedule and obligate the county to an apparently unlimited amount. Maybe the judge should have discussed this with the county prior to obligating them to pay what they seem to see as excessive amounts.

Keep in mind we're talking about paying prosecution attorneys here, not defense attorneys.

Maybe he'll start putting as much time and effort in funding the defense lawyers as the prosecution lawyer, but I doubt it.

Gritsforbreakfast said...

"Keep in mind we're talking about paying prosecution attorneys here, not defense attorneys."

Wrong. The rules are the same for both, but 99.9% of the time, they're only applied to defense counsel's fees.

Gritsforbreakfast said...

Oh, and if you truly don't understand why a judge could authorize payments beyond the fee schedule, read Judges Keel and Alcala's opinions. They explain it pretty well.

Anonymous said...

well they explain their view, but their view was in the minority.

I agree the rules are the same, so use the fee schedule just like for the indegent.

Gritsforbreakfast said...

Ah, 6:12, you said you "couldn't really see" the opposing view. Since it's written down, that seemed curious. If you're just glad Paxton won, that's a different matter. Your failure to understand seemed disingenuous, assuming you can read.

But if you're saying corruption cases against public officials must spend just a few hundred dollars on a special prosecutor while the defendants spend millions (Rick Perry's legal team was $2.2 million, I think), then there's no sense in having corruption charges against anyone. The prosecution can't compete under those circumstances, JUST LIKE lawyers for the indigent frequently cannot compete given the resources available to them vs. the DA's office.

Since we now understand you simply want Paxton to win and aren't really confused, maybe that's okay with you. But when the other party is in charge in a few years, I bet you wish it were possible to prosecute corruption in this state.

Anonymous said...

Actually I think Paxton is probably guilty, I just feel the system should be fair. Obviously you don't.

I did say I couldn't see it, not that I couldn't understand it.

Anonymous said...

PS, this is not a public corruption case, it's a securities fraud case so you're the one who seems to want a particular outcome based on "the party in charge". I just want the same rules applied.

Keel's seems to be a particularly odd choice for your hero given her refusal to work with public defenders while a judge in Houston. Guess you're for anyone who shares your opinion.

Anonymous said...

Alcala's dissent was far better than Keel's intemperate harangue (which, incidentally, didn't even mention the problem of indigent defense, her sympathies there still apparently extinguished.) Keel's opinion was disordered quibbling with the majority's paraphrases, making no substantive point, other than the one shared with the other two dissenters.
All three dissents argue in effect that "reasonable" should be given so much weight as an objective requirement that 26.05(c) should be overwritten.
The funny part of Alcala's argument was her insistence that the majority was “creating an entirely new principle of law,” namely that the fee schedule must “comport with the
applicable statutory scheme in the Code of Criminal Procedure.” It is apparently a new principle of law that one must adhere to it.

Anonymous said...

I understand that the Texas Commission on Indigent Defense may shortly issue some guidance to the judiciary/counties about how to fix the "Paxton Problem," but in the short term, one recourse for counsel who want to be paid a rate not expressly reflected in a county's fee schedule seems to be to ask the relevant judge to try to get the county's fee schedule amended to comply with Tex. Code Crim. Proc. Art. 26.05, as interpreted in the Wice case.

I recently told a judge who was interested in appointing me to a death penalty case that I was reluctant to take the appointment unless the county's fee schedule was made "Wice-compliant." That judge - who seems to actually care about the quality of the defense in his court, is already taking steps to have his county's fee schedule amended. Very refreshing!

Anonymous said...

My brother was indigent and got a 20 year sentence in Dallas Criminal District Court Four. No money meant he allowed his attorney to max out his credit cards and after that only yielded a small part of the fee his attorney asked him if he owned land or other assets. Then the attorney got tired and told him that if he didn't plead guilty he would get a 60 year sentence, which was quite incorrect, since the maximum sentence was 20 years, which was what he got.

Should Texas bankruptcy laws be modified to assist those who are rendered indigent by the Texas court system?

Anonymous said...

Shoplifters. We like to redefine just about everything these days but I have trouble with one redefinition. If you live in a good size city, a sizable portion of the city population defines shopping as the practice of going into a store, grabbing what you want and walking or running out. That is their definition of shopping. And, many of us Progressives see no problem with that re-definition--we think, they have their definition so it must be as equally valid as the old way. Sorry, I can't buy that.

BTW, in my job I have talked to hundreds of young men who have redefined shopping.

Anonymous said...

Dude whose brother got 20yrs,

What you describe if true could form the legal basis of Habeas corpus relief. Attorneys must correctly explain sentences in plea deals or they provide ineffective assistance of counsel. It’s a tough road but can be done.