Today's Orders

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The Court is still on break, so it only ruled on writs. No published opinions or issues granted.

You can see for yourself here.

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Can We Come, Too?

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So, the Justice Department has apparently decided to wade into the argument over the validity of Kennedy v. Louisiana. According to SCOTUSblog, the they've filed a bad court thingy aruging that Kennedy has been undermined. I say that because I'm writing on the fly and so I don't know how to conceptualize how they intend to jump into the case.

Because SCOTUSblog can explain it better than me, here's the link.

I have to say, it's nice to see this story have some legs. But it's still hard for me to believe that a Court so convinced of the inherent unreliability of child witness testimony will let a little thing like bad law clerks who forgot one stupid little law stand in their way.

Still, it would be nice if they dropped that language about child witnesses if and/or when they rewrite the opinion to correct the oversight. (My fear is, however, that they might have to rely upon it even more now that the "national consensus" argument has a small hole in it.)

Update: The Weekly Standard has an interesting article on this issue, and I thought I'd include a link to it under this post as well.

2nd Update: Now famed Constitutional scholar, Lawrence Tribe has spoken out. And in the Wall Street Journal, no less. Boy, this is really how you turn up the heat on the Supreme Court. I keep punching myself in the face to remind myself that "it just doesn't matter." It doesn't, but it is fun to watch. Tribe notes, "Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings." Didn't I say once (maybe it was one of the drafts I deleted) that it's not what was overlooked, it's the fact that Kennedy overlooked something that is so damning? Where's my Harvard Law tenure?


But this highlights one of the reasons why I like the CCA. I can't put my finger on exactly why I feel this way, but when things go wrong in Texas appellate law, I have faith that the CCA will be responsive enough to correct the problem. Vasquez v. State is a good example. There, the CCA came up with what appeared to be a crazy opinion about a 38.22 instruction, and everyone was like "WTF?" But this term, the Court came out with both Madden and Oursbourn to further detail where the Court was coming from. I don't see that with the United States Supreme Court, or at least, not to the degree that I see it with the CCA.

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Both Sides Now

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I picked an older case from this term to discuss this time. An oldie, but a goodie, if you will. I was thinking about how many of the cases I've been picking have offered me the opportunity to make snarky comments. I'm not going to apologize about this. In my ideal world, I'd get someone like John Madden or Jim Rome to do play-by-play on some of these cases. (Of course, look how well Dennis Miller did going the other way.) A lot of this criminal law case law shit just strikes me as funny. That's just the way I'm wired, much to the chagrin of everyone I know.

But all the cumulative effect of the snark may leave readers with the impression that I don't admire or respect the Court of Criminal Appeals or the members on it. Nothing could be further from the truth. Case in point, Fischer v. State. This is the one where the CCA held that the audio portion of a DWI video should not have been admitted because the officer's statements regarding his observations were inadmissible hearsay. Basically, the officer would interact with Fischer, walk back to his patrol car and say on the video something like "suspect has bloodshot eyes, odor of alcohol on his breath, exhibited like fifteen thousand clues before starting the one-leg-stand". The court of appeals called it the "functional equivalent of an offense report", and since offense reports are inadmissible, the officer's statements should be inadmissible. And the CCA agreed (calling it a "speaking offense report" instead because . . . well, you know lawyers, even when the agree with you they still have to say it their own way).

Now, I imagine that this opinion leaves open the possibility that an officer who's mic'd (because he we don't want him to be miced or micked) could blurt out "Before we go any further, you need to back the fuck up . . . fonky." But really, officers aren't surprised by DWIs. There's nothing new under the sun, so it's hard to imagine a spontaneous statement like "He smells like alcohol, he smells like alcohol, ha ha!" ever passing their lips. And perhaps the argument will be raised that it was the walk back to the car that rendered the statement reflective. We'll see if the majority blinks.

But the majority does have a point about the danger of a non-reflective statement on the part of the officer. He is putting those things on video for the purpose of augmenting his later testimony. I can see why officers might find this a little galling. These officers learned to do this in response to the repeated attacks on their credibilty by DWI attorneys (some scrupulous and some not so much). "Show me on the tape where . . ."

Sure, that's not the only reason they do it. It also helps them remember the details, which is very important given the repeated attacks on their credibility by DWI attorneys (some scrupulous and some not). "You said he opened the door before he threw up, but the tape shows he did it after. What else aren't you sure about?" So, to have the court implicitly questioning their motive to make stuff up during a stop is really kind of pouring salt on the wound. But it doesn't change the fact that there's at least some calculation going into the making of the statement, and that's not the kind of statement the present sense impression allows into evidence.

But the dissent has a point,too. Police officers are professional witnesses, and they are always engaged in the competitive enterprise of ferreting out crime. That type of rationale could basically make an officer incapable of ever making a "present sense impression". Oh, a high speed chase is okay, but what else could there be? And did the short period of time it took for the officer to walk back to his car really give him the opportunity to reflect long enough to weigh the heavy moral dilemma of "do I make something up so it will be easier to convict this DWI defendant or do I keep my mouth shut and do it later?" Or more simply, "do I want to do the paperwork or not?" The rule doesn't require contemporaneity (and well it shoud because that word is just too hard to pronounce), it requires substantial contempraneity, which allows for less than contemporaneity. (Having said the word three times, it's now mine.) By focusing its opinion on the "rationale" the majority sidesteps the main question, and the answer to that question under a traditional analysis probably would've led to a ruling of admissibility.

And I don't buy into the unstated policy consideration (and implict defense of the majority's opinion) that using the present sense impression exception in this type of situation would allow the State to simply offer the video to prove up its case. As the majority notes, "calculation and criminal litigation shimmer in the air." Surely Crawford would require the officer to testify. And an officer stating "suspect is intoxicated" onto the tape is clearly an opinion under current law and wouldn't fit under this exception. So why not save this analysis for when that issue is raised, and just keep the hearsay conceptually pure. (I guess that's why the majority didn't come out and make that argument.)

The two different perspectives are crystallized for me in their views of the role the videotape plays in this calculus. To the majority, the existence of a videotape makes the encounter more calculated. The officer knows he's on video and it provides him an opportunity to make his case stronger. Though they don't address it in these terms, the potential of the officer to play to the camera injects some uncertainty (at least in the view of the majority) in the reliability of the officer's statements. To the dissent, the existence of a videotape provides a check on the officers ability to wholly manufacture evidence. He knows he's on video, so he's less likely to lie.

All things considered, I tend to agree more with the dissent's view of the circumstances on this one. But the majority's opinion is well-thought out and comes to a reasonable conclusion, albeit one that I disagree with. Both sides carefully examined a broad spectrum of law and each came away with reasonable, supported opinions. It was a hard call (as evidence by the 5-4 split) in a novel situation, but it wasn't a disingenuous one (like say Kennedy v. Louisiana or even Roper v. Simmons, really). And that's one of the reason why I respect and admire them, even when they issue an opinion I that don't really like.

So having looked at this case from both sides now, I hope Joni Mitchell would be proud of me.

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You Missed A Spot

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The State of Louisiana has filed a motion for rehearing in Kennedy v. Louisiana, the Supreme Court case striking down the death penalty for the offense of child rape. Yes, this is Texas. Yes, this is also a site devoted to the Court of Criminal Appeals. However, as I mentioned in my first post, I'm a fan of SCOTUSblog, and United States Supreme Court cases, such as this one will affect Texas law as well, so I expect to be covering SCOTUS cases in addition to those from the CCA. [Though as this post demonstrates, I'm not trying to reinvent the wheel. If SCOTUSblog has already done a good job of addressing the issue, I'm certainly going to defer to them.]

And hey, Texas has a law punishing child rape by a repeat offender with death. Of course, it's unconstitutional now in light of Kennedy. So, see, it does affect Texas.

First, I thought I'd provide a link to SCOTUSblog which has a very thoughtful analysis on the rehearing, as per usual. You can read the post here. That's why they get paid the big bucks. The basic reason for the rehearing is Judge Kennedy's oversight in the first opinion. He looked at all the jurisdictions that had drafted laws applying the death penalty to child rape where the victim does not die, and he came away with the conclusion that there was a national consensus against applying the death penalty to child rape. Of course, he forgot to count both a 2006 federal law and a 2007 executive order making child rape a capital offense under military law. (And don't forget that both candidates for President denounced the opinion as well. Doesn't that make two branches against one?) So does one more law tip the scales in favor of a national consensus? At the risk of sounding cynical (looks like The Dark Knight has already worn off), probably not. But more importantly, the fact that we even have to ask that question should've set an alarm off in someone's head up there at how truly untethered Warren's "evolving standards of decency" has become. Is this the Constitution or a game of "go fish"?

Which brings me to another link that's worth checking out, from Ed Whelan's blog (can I call you Ed?), Bench Memos, over at the National Review Online. There you'll find some information regarding the law professor that Louisiana has gotten to sign on to as counsel of record on the rehearing. (He just succeded on Hamdan v. Rumsfeld, so apparently he's the shit.) You can check this out here, though you might have to scroll down a bit.

Of particular note, the professor, Neal Kumar Katyal of Georgetown Law School, apparently doesn't like the death penalty, but he is also "opposed to courts taking fundamental decisions away from American voters". Ouch. This sentiment, of course, reminds me of some very insightful comments from a well-respected prosecutor in an opinion piece featued in Texas Lawyer about Kennedy v. Lousiana. You can check that commentary out here.

Candidly, I don't know many people that give the rehearing a chance. Sure, a lot of people really blasted the opinion for the way it "got there" even though they may have agreed with the result. But Supreme Court inertia is a powerful thing, and it takes a special calculus unknown to me to overcome. I'm fairly confident that the recent demonstration of national sentiment decrying the opinion will prove to be as easy to overlook as a federal law applying the death penalty to child rape.

Still, you have to admire Louisiana for the fight.

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Today's Orders

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Again, nothing much happening here. You can find today's hand down list here.

The Court issued some short, unpublished opinions, but nothing that merits a hyperlink. In the future, I plan to list the style and name of all published opinions with a link. However, the future is not now. No matter what they tell you.

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De La Postscript

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(Hey, if there was a way I could reference Strong Island's own De La Soul, I'd do it.) Still thinking about De La Paz and what this means for the future if the CCA doesn't grant the State Prosecuting Attorney's Office rehearing.

First, what if the State responds to a hearsay/Crawford objection with "not for the truth of the matter asserted"? Does that, under De La Paz, cover only hearsay or both hearsay and Crawford? I totally see (in the most Spicoli way possible) how that could be interpreted as merely a hearsay objection. Under Crawford, isn't the character of the statement as testimonial dependent upon the purpose for which it was asked for or given? If a person is answering police questions when there's no emergency, it's hard to say that this statement wasn't taken for the purpose of future criminal litigation. With this understanding, hearsay that's not offered for the truth of the matter asserted, aside from possibly being irrelevant, could still be testimonial.

But if it's not offered for the truth of the matter asserted, why do we need to confront the witness? If we don't care about the truth of the statement, why does the defendant need to cross-examine that witness? Does confronting the witness who claims the statement be made preserve the right to confrontation?

Well, Crawford does give some guidance in this regard in a throw-away paranthetical at the end of footnote 9. According to SCOTUS, a statement not offered for the truth of the matter asserted, doesn't implicate confrontation clause rights. The San Antonio Court of Appeals, in Hernandez v. State, held so as well(as some federal courts have also done). Of course, the CCA has granted review of this very issue. So I'll be interested to see how it works out.

Second, I can't help but wonder if this isn't the flip side of Reyna v. State, which held that a defendant who does not argue admissibility under both hearsay and his right of confrontation, does not preserve error on his confrontation clause challenge. Perhaps the CCA is thinking that if the defense is required to object under both, the State must respond to both (assuming there aren't situations where a response to one would cover both, see above). But this can't be what they are thinking (remember, we have to guess because the opinion doesn't really provide any analysis), because that flies in the face of the rule (as a commenter mentioned in the previous post) that the appellate court is supposed to support the trial court's ruling under any applicable theory. It's up to appellate courts to basically look for any possible way to uphold the trial court's ruling.

Reyna held that a defendant offering the evidence "not for the truth of the matter asserted" hadn't preserved his claim that the exclusion of the evidence violated the Confrontation Clause. [The CCA makes clear in the opinion that it doesn't make a difference if the person offers or tries to exclude the evidence, the same rationale applies.] So, if "not for the truth of the matter asserted" doesn't preserve error under the Confrontation Clause, that would seem to suggest how Hernandez will come out when the opinion is issued.

Judge Holcomb dissented in Reyna and wrote, "Should a reviewing court demand that parties make their objections so specific that no more than one ground for relief could be intertwined within another possible ground for relief, the other unnamed ground for relief should be specifically articulated." (As Nicholas Cage says in The Rock, "Okay! What does that mean?") Basically, as I understand his argument, if you're going to say that the defendant only offered the statement under a hearsay exception, which one was it? Because you won't say which one it is, then the only theory of admissiblity must've been under the Confrontation Clause. In fact, the defendant saying it was offered for "credibility" purposes looks more like a Confrontation Clause theory than a mere hearsay theory. Therefore, he's preserved error. (According to Holcomb's dissent in Reyna.)

Didn't he write the majority opinion in De La Paz? I only ask because in Reyna, he seems to take a conceptually opposite position from the one he takes in De La Paz. You, State, didn't establish that the statement was non-testimonial in response to De La Paz's objection, but I'm not going to explain how the statement was non-testimonial or consider any theory that it might have been testimonial. In Reyna, the two theories were intertwined enough for Judge Holcomb to feel that the proponent's "credibility" theory of admissibility preserved error on the Confrontation Clause argument. In De La Paz, the medical diagnosis theory of admissiblity is not so intertwined with a non-testimonial theory to render the evidence admissible under the Confrontation Clause. So to preserve error, in Holcomb's view, you don't have to specifically articulate your theory of admissibility to complain on appeal, you just have to give one when both theories seem intertwined. But if the evidence gets in and the opponent raises two theories of inadmissiblity, you must specifically address why BOTH of those theories are inapplicable in order to uphold the admission of the evidence on appeal.

There's something smart to say here, I can feel it.

I don't know. I guess it makes sense from a court administration perspective. Lowering the bar for preservation allows greater consideration of claims on the merits. That way the CCA can have greater oversight over when the trial court admits evidence by raising the bar on how to prevail on an admissibility claim. Is that even consistent with where they've been going?

Well one thing is for sure, the CCA needs to make up its mind on how to spell De La Paz. Just try to search for the opinion under "case search" on their website. See how far you get without making it all one word. Case style be damned.

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To Publish or Not To Publish

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Still in Laertes mode, here, but I wanted to post on a case that I felt was the most collossal waste of time this year. Well, that's overstatement in the extreme. No cases are a waste of time. This case does set out a deadline rule and that's always helpful. But I did find it kind of frustrating.

Ex parte Reynoso.

In a per curiam opinion, the CCA resolved the interplay between time calculations under Article 11.071 and the Code Construction Act. It held that when a capital writ lawyer requests an extension and his last day falls on the weekend, the extension continues from that weekend day, not the day the writ would actually be due. I think I got the rule right. I can't be sure becaues I didn't engage in an internal scholarly debate to find out just how detailed and complex this issue really is.

Ouch. Look, I'm not mad at this holding. Hell, I prefer things get resolved on the merits rather than knocked out on a deadline thing. The appellate process is long and there are so many judges involved. Yes, there's a lot of opportunity to knock things out on a procedural basis, but courts do seem to find a way to cut through all that to get to the merits of really bad cases (which leads, of course, to some really bad procedural holdings).

My problem is really with two aspects of it.

The first problem I have is that the CCA said it would use 79.2(d) very rarely to reconsider its decision on an initial writ. It announced that it had the authority to do so earlier this term. Fine, I can see that. Sure, it may undermine the strict requirements of filing a subsequent writ because it allows the defendant to file a written "suggestion" that the Court reconsider its original order on its own. (That's in addition to any subsequent writ they may file.) But it gives the CCA an out, a catch-all provision that lets them cut through procedural problems to get to cases deserving of consideration.

It just doesn't look like THIS was one of those cases.

The CCA ultimately decided that the filing was untimely, but because the deadlines were unsettled at the time, they still considered the merits. What were the merits? WE DON'T KNOW. The defendant had already raised them on direct appeal and lost. The Court resolves the claim in one sentence at the end. This is the rare circumstance? What indisputable fact or mistake did the Court make? (Of course, that standard only comes from Keller's concurrance in Moreno, it's not the rule or holding.) Indeed, the holding was that everything was unclear at the time. Scholarly debate had to ensue. It was more complex than anyone realized. So unresolved issues count too? I thought the State had a legitimate interest in repose and finality of its convictions that's not to be disturbed even in the face of reasonable and good faith argument that the Court's disposition on the original submission was "incorrect". Sounds like both sides had some good faith arguments the first go round. So, why are we here?

I guess the argument goes that the Court should be free to address purely procedural matters, so they don't render bad procedural decisions just to get to the merits of a really bad case. How ironic that this may have created a problematic procedural case for a really good case on the merits. Should the Court consider the likelihood of success on the merits before engaging in this rare reconsideration? Apparently Presiding Judge Keller doesn't think so either. So, maybe I'm just howling into the void.

I mean, they ultimately weren't going to address the merits anyway. They already had. This was a procedural opinion on top of a procedural default opinion. And I'm sure I'll lean hard on those procedural default rules at some point, so I should just shut my mouth.

Still, the other problem I have is, if you're going to do this, why publish it? I can see the giving-the-defendant-the-benefit-of-the-doubt-because-it's-a-death-penalty-case argument. Again, courts love catch-all/miscellaneous provisions, this one lets them come back and reconsider just in case they made a mistake. It's judicial humility at work, and I can't fault that, because I'd hope it gets equally applied. (I can't think of a situation where it does, but it must be out there, so consider this my catch-all paranthetical acknowledging the possiblity that judicial humility can also help the State.) But does publishing this case when you don't even care about the merits of the claim effectively endorse the letter of suggestion avenue?

I know, I know, unsettled law gets published. The Court answered an unresolved deadline question. But why not wait until another more compelling case comes along? They don't come around that often? Hey, another reason not to publish it. Why does it need to be addressed if the Court isn't flooded with writs where the extension date fell on a weekend or holiday? So really, I guess my second problem is the same as the first. I'd like to see some consideration of the likelihood of success on the merits by the Court before deciding to reconsider the initial writ on their own motion. They do that with actual innocence claims. Can't get more serious than that.

But, I'll bet they are flooded with cases just like this one. (Have you SEEN how many writs they answer? They do work hard, the CCA.) It's a housekeeping matter that the CCA wanted to address for the future. And now, in addition to the writs, they may find themselves flooded with suggestions that they reconsider on their own motion. (If Moreno didn't do that already.) I hope they set down some rules to establish which rare circumstances justify such action.

And I'll bet they publish the opinion.

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The Dark Knight

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I know this blog is supposed to focus on the CCA, so I promise to do this only under the rarest 79.2 situations. I'm interested in popular culture, good and evil, and Memento is my favorite movie. Really, there's no way I could avoid this.

No, this movie cannot cure cancer or make you fly, despite what the critics are writing these days. No, this movie isn't better than Saving Private Ryan or Citizen Kane or The Last Emperor. It's not even better than Memento. L.A. Confidential is maybe a better treatment of the subject matter, but it wasn't as action-packed. (But both movies go at it from different directions, L.A. Confidential is about people who have lost their way regaining their "integrity", while The Dark Knight is the struggle to maintain integrity.)

But it is good. And, as evidenced by this post, it makes you think for awhile after you see it. So go see it. Still, people that keep saying it's the best superhero movie ever is actually a little funny. This movie doesn't want to be a superhero movie. It wants to be a movie, and calling it the best superhero movie is actually insulting the moviemakers.

Maybe it's fair to call it the most intellectual superhero movie. How about that? This movie takes itself very seriously. It moves along a little slowly at first, but it ratchets up the tension until the very end. It has some incredible stuff in it, and when you think back, you realize how much care, and even poetry went into the movie. Small, obvious example: The Dark Knight is a play on "the dark night of the soul" as the point of the movie is essentially a crisis of faith. And you may find yourself thinking it's too long at the end because the tension never really lets up. (And it could drop about thirty minutes . . . though I'm not sure which thirty minutes.)

See, all superhero movies are getting to be the same. They're like essays now. Each one has a theme that runs through the entire movie, and in the epilogue, the hero gets to make a decision or give a speech or both that sums up the movie like a thesis statement. With great power comes great responsibility. As long as I'm [fill in the blank] the people I love will always be in danger. We're better as a team than we are individually. How DO we get Howard the Duck back to his duck planet? This movie is really no different.

This movie's theme is about how we as a society are lost unless we can have faith in people. After 9/11, we're obsessed with making our superheroes more like us. And they struggle to have faith in us. And they show us how hard it is for us to have faith in man. They believe what they are doing is right, we know what they are doing is right. But it sure isn't rewarding anymore.

As a prosecutor, it's compelling stuff. I can relate. At the end of the movie Seven, the quote is "the world's a fine place, and worth fighting for. I agree with the second part." This movie's a whole lot of that.

So why can't movies give us something to believe in, anymore? More than just "we are the one's we've been waiting for." [I go back and forth over the politics in the movie, which is, I guess, good. It appreciates the need for hard power in these uncertain times, but feels really guilty about using it. That almost keeps it from being preachy.]

I want a hero that saves the day, damn it! Not a long suffering hero, who sacrifices his only chance of happiness so that we pathetic movie goers (who always seem to board the wrong cable car/gondola/ferris wheel/subway/ferry) can live long enough to throw garbage at said hero. I just saw Rambo, and you know what, as flawed as it was, I was frakkin' ecstatic when he laid waste to the evil (and they were evil) Burmese soldiers. Why wasn't Mal from Firefly more popular? (He's Bill Pardy, after all.) Where is Han Solo when you need him?

And I guess that's the problem I had with this movie, good as it is. [Again, go see it. It's worth it.] Batman himself doesn't give the audience one real reason to like him. This movie is all about the Joker. It's a really good performance. You should see it. He wouldn't be getting Oscar talk if it was only mediocre. It's iconic (though it's hardly Daniel Day Lewis in My Left Foot). And his Oscar would be a little like giving an Oscar to the shark from Jaws. He's so interesting to watch. He scares you. You want him to be on screen, but you're afraid he might eat his co-stars.

Sadly, Christian Bale pales in comparison. He doesn't have anything to do except punch people, jump off of buildings, and growl. I didn't really feel his connection to Rachel Dawes or his reason to save Gotham. [It was for his dad, right? How about a picture or something to remind us?] He should've gotten an Academy Award for the Machinist; there he played a character so burdened by guilt that he was just so painful to watch, and you really wanted to sleep afterwards (because this guy hadn't slept in years). Here, Bale experiences the purported greatest loss in his adult life, and he's just . . . mopey. I know, he has to be noble, we want him to look strong and stoic. We couldn't have a hero that acts like Sean Penn in Mystic River after he finds out his daughter is killed. But it'd be nice to see it lurking in the background of his performance.

But I did feel bad for Gary Oldman and his family. And Aaron Eckhart, too, to a lesser extent. He had the harder gig, he had to establish the character and develop his character arc. He did a good job, though some of the things he does are a little over the top. [Please Hollywood, have a real lawyer look at your courtroom scene before you shoot it. Especially if one of your main characters is a DA. Even when you aren't technically wrong, you are still so far from being right.] These guys had a lot at stake, and it showed.

And the movie does deserve credit for tackling such weighty material, namely social contract theory. This movie dramatizes well how quickly life can become nasty, brutish, and short when we don't all agree that it is in our collective best interests to submit to governmental rule. Terrorists want to destroy Western culture, and this movie captures how terrifying an idea that can be. Live Free or Die Hard was child's play compared to this (and the Joker does all this with just some bullets and gasoline). Even after seeing the movie I was struck by the little things in society that lead to order in our daily lives like traffic lanes (or how we naturally regard the seam in a narrow cement road as the dividing line between the left and right lane).

And that's why, at long last, I thought I would go ahead and post this here. At its heart, this movie is about the need for an ordered society. It shows what the alternative is in the hopes that the audience will try to have a little more faith in his or her fellow man. The CCA is a good court. The rule of law is important to them. (As opposed to other appellate courts that shall remain nameless.) And our society is, by and large, the better for them. To the extent that I get to help maintain that ordered society as a prosecutor, I'm proud.

Now where can I get my Bat pod?

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To Waive . . . which means to bluff?

(You get the reference to the Princess Bride if you hear the post title spoken like Billy Crystal.)

In what's likely to be a controversial opinion down the road, the CCA held that a defendant can waive the mitigation special issue in a death penalty case in Williams v. State. Personally, this is one of those opinions that puts me in awe of Presiding Judge Keller. Don't get me wrong, I don't think this opinion is flawless, but this opinion, like Standefer, demonstrates a depth and complexity of thought that is beyond me. (Which I guess says more about me.) After reading an opinion like this, it always takes me a while to catch up, and I choose to credit that to the intellectual firepower of the author rather than denegrate the judge for poor communication.

That said . . . um . . . Penry? Abdul-Kabir? How many other cases from the United States Supreme Court have sent cases back because the jury instructions didn't give the jury a way to give full effect to the defendant's mitigation evidence? But see, that leads me to a couple of very important aspects to this case that may get forgotten:

1. The judge actually included the mitigation special issue instruction in this case. The next case coming down the pipe (pike? coming down a fish?) where the defendant says he felt compelled to waive the mitigation issue to avoid the State's victim impact testimony will be more problematic. Here, we were in a situation where it really was in the defendant's interest to waive the mitigation special issue. And lest we forget, the Court was tasked with resolving a fully realized complaint that the defendant affirmatively wanted to waive this issue and the trial court didn't do it. I can't imagine that the Court relisheded the idea of having to answer the exact opposite question than the one they've had to fight with the Supreme Court over for lo these many years.

2. Strickland and Wiggins do say that the defense doesn't even have to put on a mitigation case at all. And if there was any case where you might want to not put on a mitigation case, this one was it. Without belaboring the details too much, this defendant engaged in a crime spree to possibly get into a gang that started with robbery, and ended with kidnapping and capital murder. And the victim . . . well, he was one of the top medical students at Baylor College of Medicine on the way to visit his fiancee to help her with a project. The school delayed finals everyone was so devestated. You could credibly argue that this guy might have gone on to cure cancer. The only way he would've been more sympathetic if he could have also been a five-year-old girl. (Which, if you believe some of the reviews, is possible just by watching the new Batman movie.) This was a tragic and awful crime. Faced with the inevitable onslaught of victim impact testimony that would follow by engaging the mitigation special issue, you could kind of see why the defense would want to waive.

So, I'm left to wonder if this will unhook victim impact testimony from the mitigation issue, and whether that would make a difference. I mean, Meyers' dissent may have a point when it says the mitigation special issue is kind of turned on its head with this opinion. When we're talking about the last stop before a death sentence, it's not unreasonable to think that the Supremes will be okay letting the defendant eat his cake and have it, too.

[A commenter noted that we get to the victim impact testimony through the mitgation special issue by statute. To the extent our statutory scheme links these two types of evidence, while other jurisdictions' don't, would the argument then be to that statutory scheme? Would the Supreme Court say Texas you are wrong for making a defendant feel like he has to waive his mitigation special issue to keep such evidence out? I guess not, because logically the Supreme Court would have to then say that victim impact testimony shouldn't be admitted. Limiting its relevance to the mitigation special issue also necessarily gives the defendant some control over admissiblity that he wouldn't have if it were just relevant generally. And thanks for the comment annonymous poser. It really made me think a little more.]

And the tension between the inability to waive a right to a jury trial in a death penalty case and the ability to waive a defensive issue seems a little greater than the majority makes it out to be. Indeed, the majority proclaims it a defensive issue by framing the issue as the instruction has to be either prosecutorial or defensive. It has no burden of proof, so it must be defensive. It's a stand alone provision, so it must be defensive. The defendant benefits from a "yes" answer, it must be defensive. It's not placed in the statute along with the State's issues, so it must be defensive.

But it's a catch-all provision. Courts like those. I mean, we can't really get rid of factual sufficiency because it's a catch-all provision for courts of appeals. Courts expect that there are scenarios that they haven't thought of yet that might not fit into a clear category, so they throw in a miscellaneous provision to account for that. The mitigation special issue is kind of like that. I may not buy off on the idea that the mitigation issue is really "society's" issue, but I could see that idea play in D.C. The Supreme Court may see this as a way to make sure that we didn't execute a guy who turns out to be the criminal equivalent of an incredible bargain at a flea market. (I just went to see the a Dunlap copy of the Declaration of Independence, can you tell?)

I don't know. We live in uncertain times. It's hard for me to tell if this is a fatal problem for Texas, or if it will just make the death penalty "mostly dead", which, if you've seen the movie, isn't really dead at all.

Nothing to see here folks

Well, as I said before, the CCA's on break. At least, I think they're on break (they never tell me anything). Consequently, they will be deciding writs, but I don't expect any published opinions until September. [Note to the Oracle, could you formalize your "break" by saying when it will start and when it will end on your website? I know you're all still working, I just want to know what to expect and when to expect it.]

Anyway, today's lack of published opinions is further proof of my theory that they are on break. In case you don't believe me, check it out.

Hand Down List - 7/16/08.

Sorry.

De La . . . Pass?

I'm really just making fun of the fact that I'm terrible at name pronunciation. So, the State Prosecuting Attorney's Office filed a motion for rehearing on this case, De La Paz v. State. Here, the State introduced the medical records of a victim in an aggravated sexual assault case. In those records were notes taken by nurses and a social worker that recounted the victim's hearsay statements identifying the defendant as the perpetrator and detailing how he committed the offense. The State often relies upon this type of evidence in child sexual assault cases, and folks on both sides of the aisle are waiting to see how Crawford impacts statements made for purposes of medical diagnosis. Personally, I'm not too optimistic, but I'm a glass-is-half-empty kind of guy.

The CCA's holding here really turns on the fact that the State responded to the defendant's hearsay objection with the hearsay-exception answer that the victim's statements weren't hearsay because they were statements made for purposes of medical diagnosis. But the State never addressed the defendant's objection that the hearsay statements violated the defendant's right of confrontation under Crawford v. Washington. The Court, apparently seeking to dodge the question, held that the State, as the proponent of the evidence had to prove that the statements were non-testimonial in response to the defendant's objection that they were. Because the State didn't do that, the trial court erroneously admitted the statements.

For awhile the Court looked like it was ready to address the issue of whether statements made to a non-governmental entity could be testimonial for purposes of the Sixth Amendment. But when it came time, the Court backed into its opinion without deciding the issue.

So, under Davis v. Washington, a statement is "testimonial" if the surrounding circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. But don't we end up looking at the purpose for gathering such statements when we take them for purposes of medical diagnosis? If the purpose of identifying the attacker and getting details of the attack is to provide proper treatment, hasn't the State undercut the claim that the statements were testimonial by laying the predicate for statements made for purposes of medical diagnosis? And did the Court fail to uphold the trial court's decision under an applicable theory by failing to consider this possibility?

Personally, I'm curious about the fact that Keasler concurred in the result, though that's because of my own speculation. He's a persuasive judge that can typically get at least two more judges on his side. If he's objecting to the reasoning, but not the result, does he think these statements are testimonial? Does this mean that such statements are likely to be held to be testimonial in the future? Keller as a dissent isn't very telling by itself, but Womack as a companion dissent is interesting as he's often a swing vote. And is it possible that Holcomb wrote this as a compromise opinion? Sort of like everyone's fractured on whether this is all testimonial, but we can all agree that the State didn't respond? Sure would be nice to know what those folks are thinking. Oh yeah, they wrote an opinion. It really is amazing that with all the care that doubtlessly goes into such opinions (even ones that look like they get tossed off still require some serious work), so much stuff gets left out.

Still, Cochran is on the majority's side on this one. She presaged Crawford with an article on Sir Walter Raleigh (an example SCOTUS turned to in deciding Crawford), so you know the rest of the Court probably gets all-Arkansas-Dave-Rudabaugh whenever Crawford cases come up. ("It's your gang, it's always been your gang.")

Ultimately, the Court doesn't really engage in any deep reasoning. This, of course, provides fertile ground for defense mischief. And is it really fair to call it mischief? The holding is that the statements violated Crawford. As in De La Paz, isn't it up to the State, as the proponent of the evidence, to explain the case's holding so that the trial court feels comfortable distinguishing it?

You're under arrest . . . No, REALLY

First item up for bids, Warner v. State. Here, the Court was faced with the question of whether grabbing a suspect's arms, both of them, and saying "you're under arrest" is enough to establish "custody" for purposes of prosecuting him for escape because he actually . . . escaped.

The deputy responded to a domestic violence call. On the way, he found out that the defendant had a warrant out for his arrest. When he arrived at the scene, he saw the defendant hanging out in front of the residence with some other folks. The deputy told the defendant they needed to talk, and the defendant walked with the deputy back to the patrol car.

There was some conflict in the testimony about the next part, but this was legal sufficiency analysis, so the CCA had to look at the case in a light most favorable to the veridct. Under that light, the deputy backed the defendant up against the patrol car, grabbed both of the defendant's arms and told the defendant he was under arrest. When the deputy reached for his handcuffs with one hand, the defendant broke free of the deputy's grasp and escaped.

The CCA had previously held in Medford v. State, where the officer grabbed one of the defendant's arms and told him he was under arrest, that the officer had not "successfully" restricted the defendant's movement. Therefore, in Medford, the defendant wasn't in custody when he broke free. And as Medford falls, so falls Warner.

The paradox: how has one "successfully" restrained someone who escaped. By definition, it would seem that the escape itself demonstrated that the restraint was unsuccessful.

An eight judge majority wasn't persuaded. (Only one judge dissented.) To make matters even stranger, the majority still held out the possiblity that a police officer could actually "successfully" restrain a defendant with just his grasp. But the deputy hadn't done it here. Under the definition of custody for purposes of escape, the officer must "successfully restrain the defendant's movement" and the arrest is only complete when "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." [The Court understandibly couldn't rely upon the statutory definitions because they basically consisted of "arrest: in custody" and "custody: see arrest".]

So, what has to happen for the grasp to equal custody? Does the officer have to count to three? Does he have to get the defendant to say "uncle"?

And moreover, what reasonable person who has been grabbed by both arms by a uniformed police officer and told "you're under arrest" thinks that he's merely being detained? It would seem to me that the very reason he RAN was because he thought that he was under arrested.

I don't meant to give the Court a hard time. (I kid because I love.) I appreciate that there has to be some way of distinguishing this offense from resisting arrest and evading detention. I also see that the undercurrent in this case is how this will affect custody determinations where the State gathers evidence, like voluntary statements at the police station, for example. Hell, the State relies upon "handcuffs alone doesn't equal custody" plenty of times. This must be the counterpoint to that standard. They did not, however, express that. And really, should we allow unwarned statements after an officer specifically says "you're under arrest"? I mean, practically speaking, once an officer says that, he's pretty much thinking this guy's cuffed and stuffed.

I guess I see this as just another example of how courts of appeals fine tune their standards in ways that result in police officers having to display an unrealistic (maybe even inhuman) level of precision in dynamic and volitile situations. And the fact that it seems to call for an almost talismanic or magic-wordy fix, frustrates me. (i.e. if the officer holds the defendant firmly for three seconds and the defendant doesn't bolt, has the arrest been successful? four seconds? five seconds?)

But of course, the trade-off must be that a statement is still voluntary even if it's taken after a defendant's agreed (and there's no winking, I mean he voluntarily agrees before getting into the car) to not only ride to the police station in the back of the patrol car, but also agrees (see previous parenthetical) to wear handcuffs while back there so the officer doesn't have jittery visions of Juan Quintero on the ride up.

I guess that's why they let this one go.

Hey, Ho, Let's Go

So, I'm a constant reader and admirer of SCOTUSblog. I looked around for something similar to that for criminal law in Texas. (The United States Supreme Court has been known to dabble in Texas criminal law.) Alas, no one's done it yet. (But maybe I was just stumped by the title and didn't look hard enough.) So I figured, what the heck, I'm not as articulate or insightful as those guys, and I've got a full-time job with a wife and two kids, why not give it a try? It's not like I'm "busy". Besides, no one will read this anyway, so it really doesn't matter.

Actually, my more realistic goal is to provide myself with an outlet to examine (read "work through") some of the cases from the Texas Court of Criminal Appeals when no one else is examining them. And I figured that now would be a good time to start because the CCA is on break for the summer, so that'll give me time to catch up. (I can call you the CCA, right. We're friends, aren't we?)

And maybe, I'm a little tired of anti-death penalty advocates and criminal defense attorneys dominating the discussion. Personally, I want more of choice than crediting analysis and discrediting it because of perceived bias. However, I also recognize that such bloggers, having been in the arena longer than I have, may have a comfort level that affords them the opportunity for very thoughtful analysis. So, I figure I'd better get started with my own blog if I really want to improve the thoughtfullness of my own views of case law. Because again, it's really all about me. (Writing a blog requires a certain level of compensatory narcissism, I think.)

Anyway, I don't profess to be as up to date as SCOTUSblog. (Have you seen how many people they have contributing?) Neither do I expect to be as professional. I guess it's rather presumptuous of me to even start this project by invoking SCOTUSblog. Maybe I'm just referencing SCOTUSblog to show my inspiration and aspiration. I'm certainly not referencing it as a form of quality guarantee. I guess that, at the very least, I hope it will help me compose my thoughts. If others find that informative or entertaining . . . well, if others even FIND it, bonus