Monday, October 24, 2016

Indulging despair over degraded state of TX high criminal court elections

This Texas Tribune coverage of Court of Criminal Appeals races struck me as odd, focusing on drug diversion programs which are the domain of local judges and prosecutors and which the CCA rarely considers. The rest of the story focused on whether the candidates were for or against the death penalty, but in facile terms which appeared undisturbed by the actual, bleeding-edge issues surrounding capital punishment the court has faced these last few years.

It's hard to blame reporter Jonathan Silver too much. Nobody really covers the CCA as a beat anymore in the Austin press corps. So a layperson finds it difficult to nuance questions in such a way that the answers both give readers a sense of how the candidates would behave as judges but don't require them to opine on issues on which they'll later have to rule. It's a tricky line to walk. But instead of walking it, Silver's story retreated from it, asking questions which were either irrelevant to the court or too vague to matter.

It's not just reporters who don't know much about the court. Even the candidates don't really know what they're getting into. Judge Keel had a comment she thought was critical of Meyers, declaring "judges should not advocate for policy changes." I thought that was cute. It's the sort of thing trial judges think until they get on the court and discover how political the appellate process really is. Wait till she starts to show up at conference and finds that the Government Always Wins faction near constantly wants to rewrite the statutes to reach a desired outcome instead of interpret them on their face. The open question is whether Keel will join them and give Judge Keller and Co. a working majority, and this story provides nary a clue.

Regardless of the article's shortcomings, this is perhaps the most in-depth coverage of the CCA election we've seen beyond the various newspaper endorsements. Not that it matters. Voters don't know anything about these races and don't care. The odds are overwhelming that all the Republicans win.

The only outlier is the Donald Trump factor: If he continues to melt down and Republicans stay home in sufficient numbers to spur a Hillary Clinton victory in Texas, all the Ds in this race likely get elected. (What a twist it would be if Larry Meyers was the incumbent reelected instead of Mike Keasler!) But CCA elections aren't about who's the best judge or the issues facing the court. The primary season proved that. Court of Criminal Appeals races are either unassailable bastions for GOP incumbents or complete free-for-alls in which the unqualified and qualified are mixed together in a hat and then seemingly chosen at random by a blindfolded chimp.

This is fundamentally why Grits favors merging the CCA with the Texas Supreme Court. Electing judges is a bad idea, but it's even worse when candidates have no money to communicate with voters and the results are effectively random. The Texas CCA represents basically the worst-case scenario for electing instead of appointing judges. So Grits' support for a merger is more of a backup position. I'd rather not elect them at all, but if we must, combining Texas' high courts might at least improve this prostrated process.

MORE: On Twitter, Judge Elsa Alcala notes that she and Texas Supreme Court Chief Justice Nathan Hecht similarly support merging Texas' two high courts.

AND MORE: See additional, superior CCA election coverage from Peggy Fikac at the SA Express-News.


Anonymous said...

And why do you think merging the two courts would change things? When is the last time a Democrat was elected to the Texas Supreme Court?

Gritsforbreakfast said...

@10:02 - I don't care a whit whether they elect Democrats. I'd take Sid Harle over any Democrat in any of these races.

What it would change is that candidates in TSC races raise real money and have sufficient resources to distinguish themselves with primary voters in a way that CCA judges do not. That's in large part because special interests on the civil side unrelated to criminal justice are willing to finance their campaigns. As a result, fringe candidates must meet a higher threshold to achieve relevance.

Would I prefer judges be appointed, with senate confirmation? Yes. As I said in the post, this for me is a backup position. But even then, they'd still be appointed by Republicans. The partisan issue is your hang up, not mine.

Anonymous said...

the only thing worse than us poor dumb voters electing the judges would be letting politicians appoint them.

Jimbo S said...

I don't understand what y'all think a merger would accomplish, Scott. If you think a Texas Supreme Court filled with insurance defense attorneys and law firm toadies is going to care about the Fourth Amendment, or improper photography cases, or whatever, I gotta disagree. All you have to do is look at their record on juvenile cases (which are appealed there) -- almost nothing, certainly no intellectual heft on anything approaching criminal law.

The CCA may be far from perfect, but at least they have criminal law experience. (It may bug you that a few are former prosecutors, but that's just the nature of criminal law. Deal with it.) I mean, at least we never ended up with Gene Kelly (though I guess there's still time). The only judge I can think of offhand who was not much of a criminal lawyer was Mansfield -- and though some of his opinions were goofy, most were defensible and precedent-based.

Twitter is a poor platform for this kind of thing, but I am curious why Judge Alcala thinks a merger would be good. Unless that's her way of saying she definitely wants to retire....

Anonymous said...

Jimbo - "A few are former prosecutors.." Let's count who spent the majority of their pre-judging time as prosecutors: - P.J. Keller - yup; Mike Keasler - yup; Barbara Hervey - yup; Elsa Alcala - yup; Larry Meyers - yup; Kevin Yeary - yup; David Newell - yup; Bert Richardson - yup. I guess 8 out of 9 could be characterized as a "few" or the majority, maybe? And why does the CCA get its own prosecutor to help them? The SPA offices on the same floor as the court, has access to the court and the judges daily ... no defense attorney is even allowed on their floor.
As for "toadies to care about the Fourth Amendment" - the majority of the CCA has one idea in mind when they take a case -- "How can we make the State win." Overruling years of precedent - sure. Strange theories of statutory construction - they got that down. They're so transparent that Wednesdays are basically a day you prepare to steel yourself for the 9 am witching hour of their horror show.

Jimbo S said...

Well, really.... I thought I was being delightfully witty when I said "a few." Perhaps that didn't come over clearly. The point is that it would be quite difficult to find a criminal law practitioner (even a rabidly anti-state defense attorney) who didn't have some experience as a prosecutor. If I may flip this conversation around, I think it would be more meaningful that CCA judges should have at least some defense experience, at least so they could have a slightly different perspective. But that's a question for another day.

However, 7:29, your issue seems to be that the CCA isn't as result-oriented as you want (i.e., not reaching your desired result). Fine, I guess. I can live with that attitude, though I may not agree with it as a value. But it doesn't answer the merger question. How in the hell is the Supreme Court (because, let's face it, when we're talking "merger" what we really mean is sunsetting the CCA) going to result in more opinions where defendants "win"? As a defense attorney, I feel like I can at least engage with the members of the CCA, even if the odds of persuading them is relatively low. But with the Supreme Court, we'll be speaking completely different languages. As civil lawyers, they already think criminal law theorizing is beneath them. If you think you're gonna get one of them to think critically about, for example, whether there was clear and convincing evidence that your client consented to a roadside search, well good luck with that.

Anonymous said...

@Anon: In the last several months let me reel off a few case names and charges (listed below) and see if you can tell us what happened. Let's see how well they fit in that category of "How can we make the State win?" Really, don't waste your time checking, the defense was granted the relief sought in each of these cases. The Robbins' case were dismissed once he was returned to Montgomery County. As recently as two weeks ago the Court acquitted two defendants (Walkers)serving 25 year sentences. I don't recall seeing much of anything in the news, on the blogs or anywhere else about that case. These are just a few of the cases this year where the defendants obtained relief. And of course, Gov. Rick Perry really was a defendant and really got relief, but I'm guessing you think he doesn't really count as a defendant. Although 2.5 million dollars later in legal fees and he just might beg to differ with you.

Robbins (capital murder), Villareal (capital murder), Metts, Elizondo (murder), Kenneth Walker (SBI child), Shelly Walker (SBI child), Copeland (drug search), Monroe (drugs), Flores- Aguilera (drug search), Jennings (capital murder), Byrd (stacking order), Hill (pretrial ruling), Ex Parte Abel Reyna (Gag Order). Duran (Agg Asslt), Rodney Reed (capital murder).