Texas' top judges hold summit to address trust in criminal justice system

Thanks to Grits contributing writer Eva Ruth Moravec for attending this event in Dallas. Grits had wanted to go but ended up at the dentist instead, so I appreciate her writing it up.

A daylong summit on race in the justice system for Texas judges recently held in Dallas was initially supposed to be 20-minute shorts aired nationally on the Public Broadcasting Service.

"But we're different here in Texas," said Nathan Hecht, chief justice of the Supreme Court of Texas at the December summit in Dallas. "We decided instead just to invite all the judges."

Personal invitations from Hecht and Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, were enough to summon 50 Texas judges out of their courtrooms on a weekday and into a heavily secured auditorium at Paul Quinn College. Total attendance at the summit was about 200.

The need for the curriculum - whether in televised shorts or taught live - arose in the wake of the fatal shooting of Michael Brown and riots that followed in Ferguson, Missouri, in 2014, Hecht said. Over the past 12 months, he said, the Conference of Chief Justices has been working on how to keep the community from distrusting courts.

"We need to be proactive about trust issues and to enhance trust," Hecht said. "We're concerned about how courts are affected by mistrust."

He opened the summit with a montage of news footage from high-profile shootings by and of police, then asked attendees to reflect quietly. Otherwise, the day was completely packed by the summit's planners, including state supreme court Justice Eva Guzman - the wife of a Houston police sergeant and daughter of immigrants - with interesting speakers.

"A single day is certainly not enough time to restore complete trust in the justice system," Guzman said, adding she hoped attendees realize how their life experiences affect how they handle things.

Keynote speaker Houston Police Chief Art Acevedo implored attendees to be courageous, bold and to "put away broad brushes. Don't be afraid to lose your job."

The theme of courage united several of the day's diverse speakers and panel participants, like Emily Thompson, a Dallas Area Rapid Transit officer who is back to work after her husband was killed in an ambush attack along with four others officers last summer.

Arielle Clarkson, a Paul Quinn student, said the strangulation of her brother by a police officer 10 years ago "shattered my understanding of what it meant to be protected by the police." She hopes to become a lawyer to address injustices.

 At St. Paul United Methodist Church in Dallas, a program called Together We Learn tries to bring the community and law enforcement together for things like basketball games so their interactions aren't always negative.

"The harsh reality is, people of color, when we see the police, we think something's wrong," Senior Pastor Richie Butler said. "We have to change perceptions and see people for who they really are - humans."

Cornell Law School professor Jeffrey Rachlinski said even the well-intended have biases and lectured on human beings' decision-making processes. He advised judges to start recording demographics and outcomes of their cases so they are more aware of disparities.

(Rachlinski's suggestion was one of two I heard throughout the day on how to improve trust in the courts; the other was an idea from Hecht for trial judges to explain their rulings.)

To demonstrate how underlying biases may affect juvenile justice, former state judge and professor F. Scott McCown moderated a panel of experts who told the audience what would happen to a hypothetical foster child who got in trouble at a new school. Sadly, most panelists concluded the youngster would eventually end up in jail.

"We have to get past race," said criminal defense attorney Carmen Roe of Houston, a panelist whose pretend-task it was to defend the troubled foster child.

"How do we make changes? One person at a time," said Dr. Griselda Villalobos, a licensed clinical social worker in El Paso who regularly works with children in and out of the system.

Although most of the day's dialogue pointed out problems that lacked solutions, attendees seemed pleased they were there. As the summit closed with remarks from Oak Cliff Bible Fellowship's Senior Pastor Tony Evans, sunlight streamed through the oatmeal-colored floor-to-ceiling drapes that had separated the day's events from the campus and surrounding deprived neighborhood.

"We are looking at a fraying society," said Evans, analogizing that high-profile shootings are like cracks in the walls of a home with a failing foundation. "If we get the one thing right, it can solve many things."

Historical lament over habeas limits, partisan election of DAs

Grits was pleased to learn from the newsletter of the Texas Supreme Court Historical Society of the Texas Constitution History blog, a project of Justice Michael Massengale of the First Court of Appeals. Give it a look-see.

Browsing around, I found transcribed a letter from a minority report from a committee in the 1869 constitutional convention, the Reconstruction Convention, which lamented several recommendations not adopted by the convention which their committee had championed, including two which perked up your correspondent's attention: Habeas corpus powers for district judges and appointment instead of election for District Attorneys:

The undersigned would also recommend that special authority be conferred on district judges to grant writs of habeas corpus, as recommended in the majority report.

The minority of the committee agree also with the majority in recommending that the district attorneys shall be appointed by the Supreme Court and commissioned by the Governor.

Texas district judges had enjoyed habeas authority since the inception of the Republic, so this was a big change. Grits has discussed before how, historically, nearly all legislative interventions into habeas corpus reduce judicial power, and this was no exception. (That's part of what makes Texas' junk science writ so remarkable - there are few other examples which I can find of legislatures in any jurisdiction expanding habeas power instead of the courts.) Here we see in 1869 one of the more radical reductions in Texas judges' habeas power - removing it from the hands of the front-line ministers of justice and reserving it for the bigshots in Austin.

For that matter, how different would the criminal justice system be today if District Attorneys were "appointed by the Supreme Court and commissioned by the Governor" instead of popularly elected on a partisan basis? We hear proposals in the modern era regarding appointment vs. election of judges, but appointment of DAs could augur even happier results. Perhaps having Texas DAs appointed by the Supreme Court is a suggestion which needs to be revived?

Shannon Edmonds on why Court of Criminal Appeals outcome in DeLay case '180 degrees' from Abbott's Supreme Court interpretation

The Texas Public Policy Foundation's Marc Levin has been promoting the idea of codifying the rule of lenity, so I was interested to hear prosecutor association rep Shannon Edmonds' take on the topic, testifying Tuesday before the House Criminal Jurisprudence Committee:

We have it in Texas already. We have it in Texas for cases that are outside the Penal Code, basically. It was just applied in the Tom DeLay case, okay, in which the Court of Criminal Appeals used it to interpret a statute 180 degrees differently than the Texas Supreme Court interpreted the same statute in the Elections Code. And the Court of Criminal Appeals applied it because it was a crime outside the Penal Code.  And the result is, they said the tie went to the defendant in that case rather than in the Texas Supreme Court case, then-Justice Abbott had found that someone could sue under the same Elections Code provision, and it all had to do with mens rea.

Shannon said the rule of lenity is an "obscure legal issue" that "egghead appellate lawyers" argue about in court after the fact and that existing statutory construction case law covers what Levin wants done. He cautioned specifically against applying the rule of lenity to penal code offenses. Elizabeth Henneke from the Texas Criminal Justice Coalition followed Edmonds and offered effective, lawyerly counterpoints to his position, for those interested in the specifics. See her written testimony.

Grits emailed DeLay's attorney, Brian Wice, to ask his opinion of Shannon's comments. He responded:

His comments about the rule of lenity being "an obscure legal issue" marginalize a tenet of the criminal law that is a fail-safe mechanism in cases such as DeLay where prosecutors were permitted to manufacture an illegal act out of a series of perfectly legal ones and to not merely prosecute Mr. DeLay but to turn his life upside town for almost a decade before the CCA put an end to their legally bankrupt persecutorial ploy.

And his half-hearted snarky remark about "eggheaded appellate lawyers" was, simply put, bush league. He can say what he wants. At the end of the day, the vote in DeLay was an 8-1 smack-down against the good folks he shills for. He can have the soapbox.  We got scoreboard.

You can listen to the hearing here. The discussion of the rule of lenity is the first item, with Edmonds comments on the topic coming at the 49 minute mark and Henneke following after him.

Right to counsel in Texas preceded Gideon by a century

Next Monday, March 18, at the Texas capitol there will be an event celebrating the 50th anniversary of Gideon v. Wainwright, which enshrined the right to legal counsel as a fundamental constitutional right, and on Sunday the New York Times had a story titled, "The Right to Counsel: Badly Battered at 50."

Notably, though, this may be the 50th anniversary of Gideon but not of the "right to counsel," at least in Texas. According to a newly published history (p. 65) Grits is presently reading, the Texas Supreme Court in Calvin v. State (1860) ruled that "the state had a duty to provide counsel for blacks who could not afford their own - a progressive notion that would not be enshrined in federal jurisprudence until more than a century later."

Who'da thought?

Texas Supreme Court Chief Justice backs innocence, juvenile justice reforms

Though the Texas Supreme Court only has jurisdiction over civil and juvenile justice cases, Chief Justice Wallace Jefferson spoke out in his State of the Judiciary address yesterday on behalf of criminal-justice reform. Reported AP yesterday:

State Supreme Court Justice Wallace Jefferson called for a special commission to investigate wrongful convictions, suggesting Wednesday that public faith in the legal system may be undermined given that Texas leads the nation in prisoners set free by DNA testing.

In his biannual address to the Legislature, the chief justice of Texas' highest civil court told lawmakers that "if innocent people are rotting in prison for crimes they did not commit, we certainly have not achieved justice for all."

Jefferson pointed to statistics showing that over the last 25 years, 117 Texans have been exonerated — 47 of those by DNA testing, the most nationwide. Those figures are not new, but Jefferson used them to again call for "a commission to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases and to establish statewide reforms." ...

Jefferson said cases overturned by new DNA evidence "leave us with the distinct impression that we today suffer from a systemic deficit in our collective approach to the way we decide how to administer criminal justice." He mentioned the case of Michael Morton, an Austin grocery store inventory manager who spent 25 years in prison for his wife's slaying before DNA evidence exonerated him in 2011.

He also called for rethinking the widespread practice of issuing Class C misdemeanor tickets for student misbehavior in school, the Texas Tribune reported:

Two years ago, in his last State of the Judiciary speech to Texas lawmakers, Wallace Jefferson, chief justice of the Texas Supreme Court, argued that tickets and citations for minor, nonviolent offenses by students should be a last resort. “Charging kids with criminal offenses for low-level behavioral issues exacerbates the problem,” he said. “Of course, disruptive behavior must be addressed, but criminal records close doors to opportunities that less punitive intervention would keep open.”

As he returns Wednesday to deliver a new State of the Judiciary address, Jefferson is pushing a trio of specific recommendations for how to keep students with behavioral issues from entering the criminal justice system as adults.

Senate Bill 393 would end the practice of ticketing for students with disciplinary problems that are currently considered criminal misdemeanors, and replace it with a system of “progressive sanctions,” including warning letters, community service and referrals to counseling. SB 394 would expand confidentiality for youths who have had misdemeanors dismissed, to keep their records clean. SB 395 would allow juveniles convicted of certain nonviolent offenses to settle their court costs through community service, or have them waived if they are indigent. All three were authored by state Sen. Royce West, D-Dallas.

Ticketing for nonviolent misdemeanors forces students to go to court, Jefferson told the Senate Jurisprudence Committee on Tuesday. In addition to being a waste of resources, he said, that practice makes it more difficult for students to turn their lives around. “What used to be, in our day, a trip to the principal's office now lands you in court,” he said. “We're overcriminalizing low-level, nonviolent offenses in the classroom ... and then they're on a path to our criminal justice system.”

Bravo, Justice Jefferson, bravo!

Habeas writs that helped define Reconstruction-era Texas

While preparing this post related to the history of the Texas Court of Criminal Appeals, I ran across stories about two writs of habeas corpus from Texas' Reconstruction-era history and jurisprudence that one doesn't frequently hear told. For context, in 1867, back when Texas had just one high court, not two, few recall today that all five Texas Supreme Court Justices were removed from office by the US military for their past Confederate allegiances. The five judges were publicly labeled "impediments to reconstruction," a phrase which stuck in the craw of Texas' small and insular legal community for at least two generations, and their expulsion became a cause celebre among ex-Confederate militants. Their names were:

• George F. Moore (Chief Justice, August 1866 -- September 1867, Associate Justice 1862-'66)
• Richard Coke (August 1866 -- September 1867)
• S. P. Donley (October 1866 -- September 1867)
• Asa H. Willie (August 1866 -- September 1867)
• George W. Smith (August 1866 -- September 1867)

These men were replaced by a group which would derisively become known as Texas' "Semicolon Court," so-named among courthouse wags because of their reliance on the grammatical implications of a semicolon in deciding to nullify the gubernatorial election of one of the ousted judges, Richard Coke, who ran for governor as a Democrat in 1873 and won by roughly a 2-1 margin. The Texas Supreme Court declared Coke's election invalid in an extraordinary habeas corpus writ styled Ex Parte Rodriguez - a petition by a man accused of voting twice in a Harris County election. In a ruling handed down Jan. 6, 1874, less than two weeks before Coke's inauguration, "The judges ruled against the state and concluded that Rodríguez should be released because the election had not been valid." So the judgment on the election's validity was a secondary consequence of the ruling, which at its core was about a criminal conviction in a voting fraud case. In the political arena, though, it was viewed (as it was almost certainly intended) as an opportunistic means to rescind the election of a man the military government had openly deposed a scant few years before.

What happened next, though, must have been one of the most exciting moments ever in Texas politics, and certainly in the annals of Texas habeas law:

Disregarding the court ruling, the Democrats secured the keys to the second floor of the Capitol and took possession. [Incumbent Gov. Edmund] Davis was reported to have state troops stationed on the lower floor. The Travis Rifles (see TRAVIS GUARDS AND RIFLES), summoned to protect Davis, were converted into a sheriff's posse and protected Coke. On January 15, 1874, Coke was inaugurated as governor. On January 16, Davis arranged for a truce, but he made one final appeal for federal intervention. A telegram from President Ulysses S. Grant said that he did not feel warranted in sending federal troops to keep Davis in office. Davis resigned his office on January 19. Coke's inauguration restored Democratic control in Texas.

Imagine if, upon receipt of the Supreme Court order in Bush v. Gore, Vice President Gore had holed himself up in the White House with an armed contingent and assumed the Presidency anyway, with the military and law enforcement reluctantly acquiescing to his rule over the court's objections: That would be a rough, modern equivalent of Coke's bold ascension to Governor after his ouster from the Texas Supreme Court.

Coke's story ranks as one of the most extraordinary in Texas political history. And arguably among the darkest. "In 1859 Coke was appointed by Gov. Hardin R. Runnels to a commission that decided that Comanche Indians on the Brazos Indian Reservation should be removed from Texas." He had been a delegate to Texas' secession commission, voting "yes," and volunteered as a private when the Civil War commenced, returning from the field with battle injuries as a captain with the Fifteenth Texas Infantry. He was elected to the state Supreme Court in 1866, then went in just a few years from writing opinions on behalf of the court to openly defying an order by the judges who succeeded him as he seized control of the governor's office at gunpoint. Once there, said this source (p. 156), "the court which immediately followed the Semicolon Court ... was appointed by Gov. Coke and served until the adoption of the 1876 Constitution."

Step back from the details for a moment to consider the arch of this man's political career. Richard Coke went from being ousted from his Texas Supreme Court post by the US military governor to earning the Texas Governor's seat in an election culminating in an armed showdown, after which, victorious, he named all the replacement judges. Can't you imagine those appointments must have been a particularly satisfying political prize? He oversaw the writing of the state constitution that formally launched Jim Crow in Texas, then went to Washington as US Senator to fight federal intervention from what he must have considered the belly of the beast. Even if his tenure in the US Senate failed to match the drama of his state-level political skirmishes, what an epic career!

So it was that Justice Coke became Governor Coke, and later US Senator Coke. But really, none of the  Supreme Court judges ousted by the military left the political scene, and indeed in many ways the group became the core of Texas' post-reconstruction government. Justice George F. Moore, for example, re-emerged as the first Chief Justice on the Texas Supreme Court elected under Texas' 1876 Constitution, which first established the architecture of Jim Crow. Justice Asa Willie, who was a Texas Attorney General before the Civil War and fought at Chickimauga before being elected to, then ousted from, the Texas Supreme Court, later succeeded Moore as Chief Justice before he was elected to the US Congress. A county in the Panhandle is named after Justice Donley (another in west Texas is named for Coke), while George Smith went on to serve in the Texas Legislature before his premature death from yellow fever in 1873. Most pivotal among them, though, was Justice Coke.

In the Coke-Davis episode, a habeas ruling was defied at gunpoint in an embittered political dispute, but it wasn't the only politically significant habeas writ of the era. A beautifully written posthumous remembrance (p. vii) of Chief Justice George F. Moore in 1884 by fellow Texas Supreme Court Justice A.W. Terrell described another remarkable habeas writ, this one issued during war time, which successfully dissuaded a Confederate military commander from punishment of Union sympathizers. The ruling supposedly was the source of the allegation that Moore and his fellow ex-Confederate justices would not subjugate themselves to military rule. Wrote Terrell:

I would do injustice to him as a judge and be recreant to duty as a friend, now that he is gone, if I failed in this solemn moment to rescue his memory from the aspersion conveyed in the language of a military order that once removed him from his high place. At no time during the war between the states was the maxim inter arma leges silent so forcibly illustrated as in 1864. During that year four citizens of Texas, disloyal to her government, however exempt from service, were confined in a military camp on charges of treason and conspiracy against the Confederate States. The general commanding had determined to make by their sacrifice a terrible example - unless rescued by the civil law their doom was sealed. For them, Chief Justice Moore issued writs of habeas corpus, which were disregarded by order of the commanding general on the grounds that the Confederate congress had passed an act suspending the writ. Judge Moore, unawed by power, then rose to the full dignity of a fearless judge and delivered the opinion in which it will be found these memorable words: "If the refusal to obey the writ was by order of the commanding general, then he is the principal offender. Those by whom he has perpetrated so glaring an outrage upon the law and authority of this court are alike his subordinates in criminality and inferiors in rank. ... Better it would be for the prisoners who are in custody, though doubly guilty, beyond all that is charged against them, to go unwhipped of justice, than for the civil authorities to be subordinated to military control and made dependent on the consent of the latter for the discharge of its functions." The commanding general bowed his head, purged himself of the contempt, and the doomed  men, rescued by the hand of the law from a drum-head court martial, were restored to their families. Such was the action of a Texas judge when the tinkle of a secretary's bell condemned unheard the citizens of other states to military bastilles. How can posterity believe that when the clash of arms had ceased and sweet peace came again to bless the land, a judge so loyal to the high trust reposed in him by the people, was removed from the bench by a military satrap as an "impediment to reconstruction" of civil government? Of his associate impediments, one now represents this state in the United States senate, and another presides as chief justice of this court.

That's a powerful example of the use of the habeas writ during wartime - probably one without parallel under Lincoln's Union during the same period.

As the bittersweet irony of history would have it, when Moore took the reins of the Texas Supreme Court as Chief Justice again in 1878, the Texas Constitution had split off the habeas corpus function and given it to a new "Court of Appeal," which was the predecessor of the modern-day Texas Court of Criminal Appeals. As Chief Justice of the new Texas Supreme Court, he no longer had jurisdiction over the writ which had made him a living legend among his peers.

Caveats to debate on merging Texas Supreme Court, Court of Criminal Appeals

The Texas Tribune quoted Grits this morning in a story about proposed legislation to merge Texas' Court of Criminal Appeals with the Texas Supreme Court, comporting with both the the national model and the practice in 48 other states. ("Texas and Oklahoma are the only two states with their highest courts divided between civil and criminal jurisdictions.") Toward the end of the article, Maurice Chammah paraphrased Grits' views to say, "Henson argues that lawyers with a civil background would bring a fresh approach to criminal cases. They would approach forensic science debates with the standards of civil law, which he says are more strict."

That slightly misstates what I said to him (or at least, what I thought I said), so let me iterate my stance here: Grits does not fantasize that judges with a civil background have any superior ability compared to criminal court judges when it comes to evaluating the science behind forensic disciplines, nor do I think they bring any "fresh approach" to the subject. Rather, I told Mr. Chammah that there would be a benefit from having the same court interpreting the law consistently in both the civil and criminal realms, citing divergent standards on admissible science as one example. In theory, the same US Supreme Court standard - Daubert v. Dow Pharmaceuticals - governs the admission of scientific and expert evidence in both criminal and civil law, I reminded him. But, in large part because of superior resources available to the litigants as well as historical deference to unproven but longstanding disciplines, the standards which have evolved on the civil side tend to be stricter than those applied to criminal-side forensics. (Similarly, it would be useful to have the same courts passing judgment over juvenile and adult criminal law: Right now the Supreme Court handles the juvie side while the Court of Criminal Appeals oversees cases with defendants 17 or older.)

It would be particularly helpful to have a unified court interpreting scientific issues at this historical juncture because of the array of questions facing forensic disciplines in the wake of the 2009 National Academy of Sciences report on the forensic sciences. That historic document, which has been discussed frequently on Grits, raised questions about the scientific validity of numerous disciplines that were based on subjective comparisons as opposed to "science" as in, supportable by the scientific method. I suggested to him that, as the courts and scientists sort those issues out - a process which could easily take two decades or more! - it would make sense to have the same standards interpreted consistently across the board instead of maintaining separate standards for forensics in criminal cases.

One other quibble: Chammah allows the director of the Texas Supreme Court Historical Society to portray the reason the Court of Criminal Appeals was created as an effort merely to better manage a "backlog." In reality, the Texas Constitution of 1876 was a revanchist document: The fruition of a resurgence of state power by segregationist, mostly ex-Confederate Democrats after a decade under Union-run Reconstruction. It was a first volley on behalf of Jim Crow, featuring most prominently the institution of a poll tax and the creation of separate schools for black children. For context: Following the civil war, military authorities had infamously ousted the chief justice and several sitting associate justices on the Texas Supreme Court, calling them "impediments to reconstruction," and installed replacements sympathetic to "radical Republicanism" (which may be read in the modern context as a euphemism for racial equality). The subsequent creation of a separate court for criminal cases gave Texas Democrats a means to bypass the reconstruction court and what they viewed as its odious precedents, an impression reinforced by the decision to give the CCA's predecessor sole authority to grant writs of habeas corpus, which at the time would have been chiefly considered in the context of the recent imposition of martial law. So if a "backlog" was a fig leaf rationale for creating the court, it is also true that a court unburdened by Reconstruction-era military appointees and their precedents could more easily facilitate the use of criminal law for enforcing the Jim Crow regimen whose foundations were laid in the 1876 Texas Constitution.

The other quotes from me were fairly portrayed, but the paraphrase I thought deserved clarification, and the (revisionist?) history an airing. See the full story, which Grits recommends with the above caveats.

Juvie sex-assault sentence overturned based on recantation, junk science

Slowly but surely, in leaps and starts (punctuated by inexplicable pauses and disappointing regressions), junk science long accepted in Texas courts is beginning to be more carefully vetted, at least in fringe fields where the number of cases affected is relatively small. In the latest example, Chuck Lindell at the Austin Statesman ("Central Texas man freed after conviction overturned on bad science," June 2) reported on Michael Arena's homecoming yesterday after he was released and his sentence overturned in response to a recantation by his accuser and the use of junk science at his trial. Since he was sixteen when convicted, Arena was sentenced as a juvenile and transferred to TDCJ where the 29-year old remained until yesterday:

Michael Arena, almost 13 years into a 20-year prison sentence for molesting a young cousin who later said the incident never happened, was released from prison Friday evening.

The Texas Supreme Court threw out Arena's sentence last month, ruling that a prosecution witness provided damaging false testimony during his 1999 trial — labeling Arena a pedophile based on a misused psychological test with a 35 percent error rate.

Friday morning, state District Judge Gordon Adams ordered prison officials to release Arena "forthwith pending a new (sentencing) hearing" in Bell County.

At 5:25 p.m., Arena — a mesh bag stuffed with belongings in each hand — walked out of his Dilley-area prison and into a prolonged embrace with his father, Robert Arena, freshly arrived after a giddy 220-mile drive from his Harker Heights home.

Arena has been freed, but not necessarily declared innocent:

Stephanie Arena, the cousin who accused Arena of molesting her as a 7-year-old, is prepared to testify in Arena's favor and has submitted sworn affidavits saying she lied about being sexually assaulted at the urging of her mother, who was embroiled in a bitter custody battle.

In addition, prosecutors cannot present testimony from psychologist Fred Willoughby, who in 1999 classified Arena as a pedophile based on a test that required the teen to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo.

While testifying at Arena's trial, Willoughby overstated the test's 65 percent accuracy rate and improperly testified that a Brigham Young University study certified its accuracy. Instead, the study raised serious questions about the test, saying its ability to identify pedophiles was no better than chance.

The Supreme Court's May 18 ruling, however, rejected Arena's request to be declared innocent of aggravated sexual assault.

The Supreme Court said it could not credit Stephanie Arena's version of events because a Bell County judge determined that her recantation lacked credibility, finding that it was apparently the result of pressure by Michael Arena's family. The Supreme Court typically defers to lower courts on such judgments.

That outcome muted Friday's celebration of Arena's freedom.

"Unfortunately, despite mountains of evidence that the charges against him were not true, the court refused to find him actually innocent," defense lawyer Clint Broden said. "We are happy that Michael has won his freedom but sad that he has been deprived of 13 years of his life and that the truth has been suppressed."

What's important here from Grits' perspective is the court overturning the conviction in part because of the invalidity of the (supposedly) scientific assessment. How often has the same "Abel Assessment" been used in other cases and have they been vetted to ensure there was other, sufficient supporting evidence to justify the charges? Since these assessment functions aren't performed at accredited crime labs, they don't fall under the jurisdiction of the Forensic Science Commission, but there needs to be that sort of big-picture review that the FSC commissioned for arson cases regarding the science behind the Abel Assessment and whether it's improperly influenced the outcomes of other cases.

See prior, related Grits posts:

• New sentencing hearing ordered based on junk sex-offender science
• 'Inmate challenges pedophilia test as junk science.'

TX Supreme Court says anonymous commenters have stake in release of identifying info

Grits admittedly has a love-hate relationship with anonymous commenters. Over the years, some of the most thoughtful things said in this blog's comment section have come from behind the veil of anonymity, but also nearly all of the most vile, garbage-level personal attacks and smears against me, the subject of blog posts, other commenters, and in too many cases even trashing co-workers, family members, or other non-combatants by name. For a time, Grits actually shut off comments altogether on TYC strings for that reason. (I don't always have time to read every comment on Grits, much less moderate them one by one, so it's pretty much an all-or-nothing deal.) Though I totally understand the decision of those who don't, I allow anonymous comments mainly because Grits gets quite a few government employees posting here anonymously who wouldn't put in their two cents otherwise. Just because I allow the practice, though, doesn't mean I'm required to respect every anonymous commenter (quite a few I don't respect at all), and I understand the frustration at cowards flinging cheap shots who would never put their names on such bilious statements.

That said, at the end of the day I find sufficient value in anonymous speech to favor its protection, so I was heartened to learn of a ruling from the Supreme Court of Texas last month quashing subpoenas to Google for the identities of two anonymous commenters, Operation Kleinwatch and Sam the Eagle, at a site called the Southeast Texas Political Review, which has a detailed page including links to filings about the lawsuit. According to the Supreme Court of Texas Blog, "The Court makes clear that, in Texas, a side agreement between the plaintiff and the party holding that information (here, Google) does not excuse the trial court from considering the objections of the person whose personal information is involved." The court didn't say the records couldn't be subpoenaed, but the person whose identifying information is being released has a dog in the fight, not just the requestor and Google.

The blog Internet Cases found it particularly noteworthy that "While many courts have evaluated this kind of question using a first amendment analysis (i.e., is the John Doe’s interest in speaking anonymously outweighed by the plaintiff’s right to seek redress), the [Texas Supreme] court in this case looked to more general concerns of avoiding litigation abuse. Citing to a law review article by Professor [Lonny] Hoffman, the court observed that there is “cause for concern about insufficient judicial attention to petitions to take presuit discovery” and that “judges should maintain an active oversight role to ensure that [such discovery is] not misused.” Don Cruse at the SCOTX Blog agreed, declaring that "Because there are so many other kinds of personal information out there in the world besides anonymous speech, the Court’s holding on this seemingly narrow procedural ground may be even more important than if it had instead based its result on First Amendment grounds."

A few years back the Bexar County probation department tried to secure identities of anonymous commenters who were employee-critics of then-probation chief Bill Fitzgerald, but if memory serves, they backed off before the issue made it up to the appellate courts. Even though I write under my own name, I definitely think anonymous commenters, and everybody else, have a stake in the release of their identifying information and am glad to see the state's high court formally recognize it.

Exonerees prevail in compensation suit vs. Comptroller

The State Supreme Court sided with exonerees in a lawsuit against the state Comptroller, who had disapproved portions of their compensation for false convictions because they were on probation or parole when falsely convicted of a different crime and revoked over the false allegations. Reports the Austin Statesman:

The Texas Supreme Court on Friday ordered the state to pay $2.7 million to three wrongly convicted Texans who spent, in total, 52 years in prison for crimes they did not commit.

Wrongly convicted Texans may collect $80,000 for every year in prison, but Comptroller Susan Combs' office ruled that the three men were ineligible for full compensation because they had been on parole for prior crimes when they were imprisoned.

But a unanimous Supreme Court said Combs' office was too restrictive in applying the law, enacted in 1965 and updated in 2009 to compensate exonerated convicts for the emotional, physical and economic toll of prison.

Being on parole did not disqualify the men from full compensation, the opinion by Justice David Medina said.

There's another extant case, that of Anthony Graves, where the Comptroller has denied compensation claims, forcing the exoneree into court to get the money coming to him. Texas' compensation statute was created in part to avoid expensive civil litigation when innocent people are falsely convicted, but litigation can only be avoided if the Comptroller pays out as it should in clear cases of actual innocence.

See related coverage from the Supreme Court of Texas Blog, describing how precedents from the Tulia cases set the stage for yesterday's ruling.

Judicial activism by TX Supreme Court creates new right to privacy, but only for government workers

The Corpus Christi Caller Times today published an excellent op ed from the director of Texas' Freedom of Information Foundation on the ill-considered judicial activism by the Texas' Supreme Court to create, based on no statute or precedent, a new privacy right which applies solely to government employees. The column opens:

 It is the job of the Texas Legislature to draft the laws of this state, not that of the courts. This doctrine, basic to the separation of powers of the branches of government, and a canon of conservative political philosophy, has been turned on its head by the Texas Supreme Court. In its zeal to exempt birth dates of governmental employees from release under the Texas Public Information Act, the court has created an entirely new right to privacy. This right to privacy applies only to governmental employees and only to requests under the Texas PIA. (The state can continue to sell date of birth information to insurance companies, private investigators, etc.)

The court not only found a right to privacy in birth dates that the Legislature has repeatedly declined to enact, but founded this right to privacy on a legal theory not raised in any papers in any proceedings before any of the courts that heard this case, and that was specifically disclaimed by the Comptroller as a basis to exempt dates of birth from release. Personnel records of employees of Texas governmental bodies are now subject to a special right to privacy, a balancing test that requires the requester to show evidence of governmental wrongdoing before access will be granted. The court's suggestion that it needed to pull this doctrine out of the air because the Comptroller did not act as a true adversary on behalf of governmental employees, after the Comptroller did everything in her power to close off access to birth dates except make an argument for which there was no legal support in Texas jurisprudence, is stunning.

It is difficult to see how the chief justice, or any of the justices who joined this opinion, can claim a conservative judicial philosophy. A conservative judge understands that the role of the judiciary is to follow the mandate of the Legislature, not to create its own law, but that is precisely what the court majority has done in the Comptroller case.

I couldn't agree more. When the decision came out, Grits' plaintive headline was "Activist Texas Supreme Court ruling neuters accountability."

From a process perspective, the next step on behalf of openness theoretically would be to go to the Legislature and ask them to re-open the information. But if history is any guide, that will be difficult to impossible. In 1996, the Texas Supreme Court completely gutted the theretofore generous (to requestors) law enforcement exception to the Public Information Act (Gov. Code 552.108) in a case styled Holmes v. Morales. Creating new law out of whole cloth and overturning three decades of Attorney General opinions, the Supreme Court of Texas decided that police records could remain closed in cases that did not result in a conviction, deferred adjudication, etc.. So if no one is successfully prosecuted, records about a case remain closed. E.g., a gunshot death is ruled a suicide - the family has no right to see the investigative file. Sometimes charges are dropped in cases where going to court would reveal police or prosecutorial misconduct - precisely the type of instance where you would want records public. It was really a terrible decision, even if few understood its implications at the time. About half of all open records requests - or at least half of instances where agencies seek AG rulings (no one tracks total requests) - relate to law enforcement and/or criminal justice agencies.

The following session, the Lege took up the issue. But instead of reinstating those records back to their prior state of openness - which dated back to the initial passage of the Open Records Act after the Sharpstown bank scandal - they codified the bad SCOT ruling and thus perpetuated the damage from judicial activism instead of ameliorating it. At the time I was working on a campaign to install civilian oversight at Austin PD and was an aggressive user of the public information act to access records about police misconduct. So I can say from personal experience that the difference in the amount of information one had access to before and after the SCOT ruling was like night and day: Huge swaths of valuable records just closed up overnight. From a government accountability perspective, it was a catastrophe.

My fear is the same thing will happen here with the SCOT ruling on a special right to privacy for government workers. Instead of rolling back this blatant judicial activism, I won't be surprised if the legion of legislative critics of judicial activism embrace this decision, just because it's activism on behalf of the majority party. If those critics wanted to take a stand against judicial law-writing, though, and in favor of government transparency, this would be a fine opportunity.