Singing Loudly: Death Penalty in Texas: When the Courts are Lawless

Singing Loudly

Sunday, December 05, 2004

Death Penalty in Texas: When the Courts are Lawless

In my continuing series of posts about the death penalty, I want to focus a bit on why the Texas Death Penalty Scheme is under such attack by the Supreme Court as of late.

The New York Times has an excellent article (reg. req'd) today about why the court is going to hear arguments on the third Texas Death Penalty case of the year this week. I can distill the reasons pretty simply: The Texas Court of Criminal Appeals is a renegade court that continually undermines both appellate jurisdiction and the Constitution.

The Court of Criminal Appeals is perhaps the most renegade court in America. Just a year ago they were allowing hearsay testimony in under the excited utterance exception for things that were said up to 36 hours after the stimulus. For example, I had a case where a female was arrested for domestic abuse after her boyfriend went to the police to report the fight 24 hours after the fight. By the time the trial came around he had signed an affidavit of non-prosecution (meaning that he would not testify against his girlfriend). The court would still proceed on this because they would put the officer on the stand who would then say what the guy told him, 24 hours after the cause of the charge. This is clearly unconstitutional before Crawford v. Washington. Thankfully, Crawford made it clearly known, by Justice Scalia, that this shit the Court of Criminal Appeals was allowing wasn't constitutional.

I'm surprised that the Court of Criminal Appeals and the Fifth Circuit, which allows them to get away with their unconstitutional detour, has decided to follow the Supreme Court's mandate in Crawford. After all, with death penalty jurisprudence they don't follow what the Supreme Court mandates. Justice Sandra Day O'Conner says this about the Fifth Circuit:

Justice Sandra Day O'Connor wrote in June that the Fifth Circuit was "paying lip service to principles" of appellate law in issuing death penalty rulings with "no foundation in the decisions of this court."

This lawlessness of the Fifth Circuit has trickled down to the Court of Criminal Appeals and has led the Supreme Court, in an unsigned opinion, to say this:

the Supreme Court said the Court of Criminal Appeals "relied on a test we never countenanced and now have unequivocally rejected."

These are not typical reprimands. These are harsh, and necessarily so, because the two highest Courts for Texas criminal procedure are willfully allowing the prosecutors and courts below to violate the constitution.

They might claim that they are only violating the Supreme Court's interpretation of the Constitution, but that argument doesn't pass muster. This is what O'Conner was saying when she said mentioned principles of appellate law. Under our system, for better or for worse, every court is bound by the decisions of the Supreme Court. They have the final word. If a court wants to give defendants more protection than the Supreme Court provides, that is fine, but the Supreme Court sets the necessary level of protection. The Fifth Circuit and Court of Criminal Appeals have fought tooth and nail to give lower protection than that afforded by the Supreme Court in countless types of cases. The Supreme Court is fighting back concerning the death penalty cases.

In the case that will be heard this week, the court is going to be looking at the defendant Mr. Miller-El, who has been on death row since 1986. Last year the Supreme Court sent a warning to the Fifth Circuit about this case when it said to rethink its

"dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury.

The Prosecutor used 10 of its peremptory challenges to strike black jurors and two jury shuffles to move black jurors to the back of the jury pool.

Jury Shuffles are a way for either the defense counsel or prosecutor to take a quick look at the jury and do a shuffle. The rationale behind it is to allow for a more even jury. In Texas most of the people in the front of the jury pool will be the ones picked for the jury. People in the back rows of the pool are typically ignored, for the most part, in voir dire because the judge starts at the front once challenges for cause and peremptory challenges remove potential jurors.

A peremptory challenge is a challenge that allows the defense counsel and prosecutor to pick people and remove them without giving any reason. There is a limited amount of these and they have to be used in ways that don't violate the jurors rights. They cannot be based on race, sex, religion, or other protected status reasons. The Supreme Court decided that in Batson. That is why either the prosecutor of defense counsel can make a Batson challenge in both civil and criminal cases for violating the rights of the jurors.

When 10 out of 11 peremptory challenges share the common characteristic of being black, and calling for two shuffles when there are black people in the front of the jury pool, it seems that the motivation for the prosecutor was to keep black jurors out. The Supreme Court was telling the Fifth Circuit that the better look at this when they sent that warning. However, the Fifth Circuit relied on the one dissenting opinion, that of Justice Thomas, and refused to change their decision.

"The Fifth Circuit just went out of its way to defy the Supreme Court on this," said John J. Gibbons, a former chief judge of the United States Court of Appeals for the Third Circuit, in Philadelphia, who joined a brief supporting Mr. Miller-El. "The idea that the system can tolerate open defiance by an inferior court just cannot stand."

The odd thing is that the Fifth Circuit, Texas Court of Criminal Appeals, and Texas prosecutors are just not caring that they are being overruled time and time again by the Supreme Court. Their record of being overturned by the Supreme Court is dismal,

Over the last decade, [the Supreme Court] has ruled against prosecutors in all six appeals brought by inmates on death row in Texas.

And this isn't the "liberal" judges on the Supreme Court who ganging up on Texas. These are Justices like Scalia, Rehnquist, O'Conner, and Kennedy who think that Texas needs to change their death penalty scheme.

From 1989-1991 the jury instructions given in death penalty cases were clearly unconstitutional. The Supreme Court in 2001 held them to be unconstitutional. However, the Fifth Circuit and Court of Criminal Appeals continue to uphold death sentences that came from these unconstitutional jury instructions. Since 1991, more than 40 people have been executed who were convicted with these instructions.

Under the law there is a tenant that ignorance of the law is not an excuse for breaking the law. Strangely, this doesn't seem to apply to the Judges in the Court of Criminal Appeals, as Judge Meyers explains that they do not intend to defy the Supreme Court, it's just that they don't understand:

"We feel the Supreme Court is changing the rules on us in midstream," he said. "If they feel we're not getting it, it's because they're not being clear, but that's just a personal view."

First, they aren't changing the rules on you. It has been clear what is required of the courts in jurisdictions that have the death penalty. The Texas Legislature then passes legislation that is unconstitutional under those rules. Instead of following the Supreme Court and declaring those legislative enactments unconstitutional, you uphold them and get overturned by the Supreme Court. Possibly this is because you aren't intelligent enough to understand what the Supreme Court clearly articulates in their opinions. If it isn't "clear" to you, I know that reading opinions that are 50-60 pages can be daunting, you might want to buy a supplement and read it. Then it might become a little clearer.

Of the 9 members of the Court of Criminal Appeals, 7 happen to be former Texas prosecutors. That doesn't just give me pause:

"No one runs for the Court of Criminal Appeals on a platform of vindicating constitutional rights," said Professor Steiker, the University of Texas law professor.

But, aside from the ignoring the Supreme Court, do they do a good job?

"The Worst Court in Texas" was the ignominious verdict on the cover of the November issue of Texas Monthly, the state's glossy bible of style and politics. The target: the Texas Court of Criminal Appeals.

What other court would vote 6-3 (all six were former prosecutors) to uphold the conviction of Roy Criner, a prison inmate serving 99 years for the rape and murder of a 16-year-old girl, when two separate DNA semen tests (test that weren't available when he was tried) conclusively proved, if not his innocence, the need for a new trial? Ultimately it was then Governor, George W. Bush, who gave this guy clemency.

"It's pretty bad when you have to go to Governor Bush for relief," said James Marcus, executive director of the Texas Defender Service.


The article has more about this particular case and the two courts in question.


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