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An unpublished, per curiam opinion garnered four dissenters (the entire Government Always Wins faction) but no dissenting opinion earlier this month.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.