Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

The Texas Court of Criminal Appeals decided an unusual writ case last week, which contains some disturbing admissions - at least they are disturbing to me. Hector Medina was appointed extremely competent lawyers to pursue an application for writ of habeas corpus in his death penalty case. His lawyer made a tactical decision to submit a cursory writ, which was only four page long. His reasoning - which I don't fully understand or agree with - was that he wanted to change the pleading rules in habeas cases.

The court recognized the writ was not complete, and there was probably a lot more there. However, they couldn't decide what to do. If they denied the writ then Mr. Medina had lost his chance at relief through post-conviction proceedings. They couldn't force the lawyer to re-file, nor could they find him ineffective because they have already held that there is no right to effective assistance in a writ proceeding. So they came up with a new approach - they found the writ was not a "cognizable writ application", held the lawyer in contempt and appointed new counsel.

All that's fine and good - at least Mr. Medina is not going to be executed without having presented a complete writ application, which the Court will probably deny. The disturbing part comes in the dissent of Justice Keasler, which points out that the application in this case is no different from others they have denied on the merits. He noted that during his time on the court he had seen a number of applications that were just as poorly prepared as this one, and they were all denied.

The disturbing part of that statement is that he acknowledges the Court knows they are denying relief when they know one someone has not been properly represented. Since you don't have the right to effective assistance, it's too bad. To me that is inexcusable.

If you are going to execute someone you should only do so after their case has been fully reviewed. Yet the court is affirming death sentences when they know the person's case is not being fully reviewed. While you would hope all lawyers would take their jobs seriously the said fact is we know they don't. The court shouldn't be able to pass the buck, and say "that's not my job."  I would like to think this is a step toward that, but I'm not convinced.

If nothing else, this should show just how screwed up our death penalty system is.

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I recently commented on the release of Michael Morton after DNA evidence established another person's guilt. DNA evidence that John Bradley called a waste of time, and opposed. As I wrote that, the Court  of Criminal Appeals was issuing an order declaring Mr. Morton actually innocent. They did soextremely quickly, and there's a story behind that.

It turns out that Mr. Bradley filed a request for an expedited decision. He was clearly concerned about Mr. Morton being cleared so he could obtain compensation - at least that he said.  As you can probably guess, there's more to the story.

There was an agreement that Mr. Morton's lawyers could pursue discovery until the final order was delivered - discovery aimed at uncovering who did what, and who knew what. They believed they had at least 30 days to do that, and probably would have in most cases. By obtaining an expedited ruling they short circuited that process, before it even started. What will  happen with the investigation is now up in the air.

So did they take this action out of concern for Mr. Morton, or as a strategy to ensure that the truth remain the hidden? If I had to bet I know where I would place my money.

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Those of you who followed the Willingham investigation probably remember that a judge started to hear testimony in a Court of Inquiry proceeding. A motion was filed to stop the hearing, which was ultimately successful. That motion was filed by R. Lowell Thompson, the Navarro County District. The end result was that witnesses who were scheduled and ready to testify never had a chance.

When combined with the actions of the Forensic Science Commission the goal of scuttling any inquiry into the investigation has been successful. There still  has never been a hearing addressing the validity of Dr. Hurst's initial report, and there likely never will be. No matter what your position on the case is, I would think that is worrisome.

While I can't say that much surprises me about this case anymore, I was surprised when I learned that the Texas District County and Attorney's Association gave an award to Mr. Thompson at its annual convention recently. Normally, people get awards for doing positive things. Mr. Thompson got an award for derailing an investigation aimed at finding out what really happened. He was surprised, and so am I!

What is really disturbing are the reasons he advanced; perhaps he felt a need to justify getting an award. He stated he was concerned about a lack of local participation - which frankly is a legitimate issue. The problem is that he was not excluded. He had a full notice, as did everyone else. He could have come and sat down at the table, and cross-examined all the witnesses. Which would have been a good thing. He could have also presented his own witnesses - again a good thing. He had an opportunity to make the State's case and quiet all the criticism. Instead of doing that he went in and shut and it down.

The controversy over this case is never going to die down. A big reason is that instead of putting everything out there - and letting people make up their own minds - the strategy has been to brush it aside, and prevent any further investigation. Is that really something you should get an award for?

 

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Unless you've been up in the mountains without media access you know that an Italian Court found Amanda Knox not guilty. This verdict followed the original verdict where she was found guilty of murdering her room mate. While I don't know much about the Italian justice system, it appears the appeal goes to a panel of judges, who review the evidence, and can hear new evidence. It was during this process that the reliability of the DNA evidence was questioned.

So what would have happened to Amanda Know in the United States? Her case would have gone to a Court of Appeals, who would review the trial for legal errors. Their review would be limited  to the record of what happened at trial. They don't have authority to order new testing, nor do they have authority to hear evidence. If the reliability of the DNA evidence was questioned it would have been up to her lawyers to do that, and even if they produced the same evidence the Court wouldn't be able to consider it in the direct appeal.

A U.S. court also would not be able to decide whether she was guilty or not. Instead, they would review the evidence to determine if it was "legally sufficient", which basically means whether there was sufficient evidence to support the verdict. The court cannot make its own credibility decisions, but assumes the jury found the witnesses credible. Such review is extremely limited, and few cases are ever reversed on this basis.

So the short answer to the question is that she would still be in prison, and would probably be there for the rest of her sentence. Evidence of faulty test results could be presented in a writ of habeas corpus, but it is doubtful that would be enough - especially since the state still claimed there was nothing wrong with the DNA testing. The only time relief is granted in those situations is where the expert agrees they made a mistake, or there is no doubt about it. Clearly that was not the situation here.

It sucks to be convicted anywhere, but luckily for Amanda Knox she at least got convicted in a system that is designed to catch mistakes. We can probably learn a lesson from that.

 

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If you follow this blog you know I am critical of the use of forensic science in criminal cases, especially when guilt or innocence depends on the opinion of some expert. In my opinion, forensics should never be used to determine guilt or innocence. Far too often the opinions put forth by experts are subjective, and based on inherent biases. Science also changes - or at least the understanding of certain things changes - which may make an opinion that was valid when given, no longer acceptable. Witness arson cases, where thousands of convictions have been based on nothing more than myths and old wives tales.

So what happens when an expert is called upon to reevaluate their opinion, and decides it is no longer valid. That was the situation presented to the Court of Criminal Appeals in Ex parte Neil Hampton Robbins. Mr. Robbins was charged with capital murder, based on the death of his girlfriend's 17 month old child. The state's case was based largely on the testimony of a medical examiner, Dr. Patricia Moore, who performed the autopsy. She testified that the child died from asphyxia due to the compression of her chest and abdomen. She was subsequently called on to reevaluate that opinion, and stated she could no longer stand by it.

 The problem any defendant in this situation faces is establishing a legal basis for relief. Once a defendant is convicted, he must establish actual innocence to obtain relief. That is an extremely high burden, which is rarely met in any cases other than those involving physical evidence - such as DNA. In this case Mr. Robbins fell far short of meeting that burden, because Dr. Moore testified that her current opinion was that the cause of death was undetermined. Essentially she could nott rule out that the death was the result of asphyxiation , but she also could say it was. The endresult is that Mr. Robbins was denied relief. In a issenting opinion, Judge Cochran pointed out that the case " raises a novel and difficult issue for the criminal justice system." She agreed that actual innocence had not been established, but believed Mr. Robbins should get a new trial because he did not receive a fundamentally fair trial based upon reliable scientific evidence. A view, which unfortunately was only shared by three other justices; she believes that the case should be retried to ensure the accuracy of the verdict.

 

I believe justice Cochran is spot on. How can you have any faith in the criminal justice system, if a defendant is based on evidence that would probably not support a conviction at the current time. In other words if Mr. Robbins were retried he would probably be found not guilty. Yet he will have to remain in prison probably for the rest of his life because he cannot meet some arbitrary legal definition.

 Mr. Robbins also tried an alternate approach which was to argue that Dr. Moore's testimony was false. The court rejected that claim, because the testimony was not in fact false.

Along with  justice Cochran's opinion, the bright spot in this case was the opinion of the newest justice, who has recently been appointed. Judge Alcala dissented, believing Mr. Robbins should be granted relief because he was denied due process of law.

 As long as the criminal justice system is going to rely on scientists to determine guilt or innocence, it needs a process to remedy this type of situation. It occurs far too often, and defendants basically have no relief. That is not right, and hopefully someday at least one other justices will agree.

As a side note, the Texas Legislature has actually addressed this in the last two sessions. A bill was introduced - and approved - to reform the habeas statute to allow this type of claim. Regrettably, it has died both times as a political casualty of arguments over other bills. Even though everyone agreed, it has still not passed. Maybe one day partisan politics will allow a good piece of legislation to survive - at least one can hope. For the time being, defendants like Mr. Robbins have not remedy.

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the The Houston Court of  Appeals recently granted relief in another case - The State of Texas vs. Terry Golding. The defendant had plead guilty to driving while intoxicated and unlawfully possessing a firearm. At the time – 1994 – he was a lawful permanent resident. No one told him that the convictions might impact his immigration status, and shortly after Padilla was decided he filed a writ of habeas corpus claiming his plea was involuntary for that reason. The trial court agreed, and recommended that relief be granted.

One of the big issues in the case was whether the defendant was adversely affected. The state argued that he suffered no collateral consequences from the convictions because he had not been deported, nor was he arrested or incarcerated The court rejected that argument, holding it was sufficient to show that he had been denied the opportunity to apply for naturalization, as well as the possibility that he could be deported in the future.

 The state also argued that he waited too long - laches - which was also rejected.

 This case is significant because it establishes that a defendant does not have to wait until something bad happens to challenge his plea. It also shows how much power and discretion trial courts have. Here the judge entered findings that supported the grant of relief. As long as there is some evidence to support those findings they are almost unchallengeable. Had the judge found relief was not warranted, the result would have no doubt been different.

With that said, the lawyers apparently did a great job of presenting evidence to the judge. They established through trial counsel that Golding was not advised about potential immigration consequences. They also presented evidence from an immigration on the effects of such a plea, as well as presented letters of recommendation that could be filed to support his application for citizenship.

This case also is a blue print for lawyers on what they need to do - which depends on the facts of the case. Here the consequences of a plea were automatic, so the defendant had to be advised of those consequences. In those cases it is not sufficient to simply advise a client that a plea "might" result in deportation or other negative consequences. That places the burden on the lawyer to either know some basic immigration lawyer, or consult with someone who does. Many lawyers are not happy with that added responsibility, but it is something you must accept if you want to be a criminal defense lawyer. After all, if you don't tell your client what might  happen, who will?

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Although they never even mentioned Padilla a two-page opinion from the Court of Criminal Appeals last week raises the question of whether the court considers it to be retroactive The case is Ex parte Herrera. As with most written opinions there is not much discussion of the facts or the law. That is because generally the court is only addressing whether the trial court recommendation should be approved. In Herrera the court held it should.

Mr. Herrera's  pled guilty and alleged his plea was involuntary because no one - including the court - advised him of the immigration consequences.He had made the same claim in a prior writ, which had been denied. In the interim he had been deported, and when he returned he was caught and prosecuted in federal court for illegal reentry. The court recognized that a prior writ had been filed,which normally would prevent someone from filing a second writ – especially on the same groundsThe court simply stated that when the first writ was filed he was only subject to deportation,while when the second writ was filed he had already been deported.

The confusion engendered by the decision requires an understanding of habeas law. Texas law requires a court to admonish all defendants that there are immigration consequences from a plea. The failure to give those admonishments may or may not be significant. In the past the court has held that in order to obtain relief a defendant must show that he was not a legal resident. That would be enough on direct appeal. In habeas however you must go further and establish that you would not have pled guilty had you known you could be deported. The fact that you have been deported is not legally significant; The focus is on the voluntariness of the plea, and not on whether you are actually harmed Therefore, if the only change is that you have actually been deported, that should not have been an issue.

Prior to Padilla the only claim a defendant had was that the trial court failed to comply with the statutory admonishments The court – as other courts– rejected the argument that a lawyer had an obligation to advise a client about the immigration consequences of the plea. Obviously, Padilla changed that. Therefore, the claim would now be one of ineffective assistance, which is a constitutional claim as opposed to a statutory claim.

Although the court never said so, it is difficult to understand how it could grant relief on a subsequent writ if it did not rely on the holding in Padilla. That issue has yet to be completely settled (Mark Bennett has discussed a Houston case going the other way) and requires a discussion of retroactivity which is beyond the scope of this post. If you're making that claim though, this decision is certainly one you should rely on.

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The Court of Criminal Appeals recently attempted to answer the question of when advances in science can be used to obtain relief after conviction. The usual situation is that a defendant was convicted years ago, and a key part of the State's case was forensic evidence. Since science (or at least our understanding) evolves, what was once well established may now longer be. Exhibit A is arson. In the past the so called experts relied on pour patterns and other indications which we now know exist in almost every fire. The problem is what to do with this new evidence.

The Court of Criminal Appeals has held that a defendant can obtain relief through habeas corpus when they can establish actual innocence based on newly available evidence. You cannot simply argue you were actually innocent; which would basically be retrying the case. You must establish  there is new evidence available that establishes your innocence.

The court address the issue of "new evidence" in Ex Parte Spencer. There, the defendant presented a forensic visual expert (I haven't heard of one either -  it sounds pretty cool), who testified the witnesses could not have seen what they claimed they saw. The court held that was not newly available evidence. They focused on whether the evidence as it originally existed could be retested or reevaluated. Since the scene had changed, and conditions were different, that could not be done..

In my opinion, the court fell into the trap of evaluating everything against DNA evidence. There is no doubt that everyone considers DNA evidence to be the gold standard, and as a result everything has been compared to that. In DNA testing the original evidence is retested, and there is no problem in doing so. However, not all advances in science fit easily into that categorization. Arson is one that immediately comes to mind.

Under the test adopted by the court, the advances in our understanding of fire dynamics would not qualify as new evidence. The scene would have long been destroyed, and pictures would probably not be sufficient. I'm sure there are other areas that will pose the same issues.

As long as forensic science is used in criminal cases, the courts must be open to reevaluating those cases when necessary. Science, and our understanding of different things is constantly evolving;. what we hold as truth today, may deem be discredited tomorrow. To allow a conviction to stand on discredited terrorist testimony can certainly not be considered fair or just.

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Occasionally you read a decision and your draw drops; just when you think you've seen everything, you learn something knew. I had that experience earlier this week when I read the Court of Criminal Appeals decision in Niswanger v. State. It seems Mr. Niswanger was at a grocery store selling raffle tickets to supposedly benefit firefighters and soldiers returning from Iraq. The local mayor complained, so an officer went to investigate. Mr. Niswanger told the officer he had the store's permission, and after explaining the charity asked the officer if he wanted to buy a ticket. The officer asked for his identification, and as Mr. Niswanger was retrieving his license a Volunteer fire department badge appeared. The officer asked Mr. Niswanger if he was fireman, and he said he was.

So what happened next? Mr. Niswanger was arrested for impersonating a public servant. The state alleged he claimed he falsely claimed to be a fireman to dupe the officer and sell raffle tickets. The problem Mr. Niswanger had was that he had a prior criminal history, which the State of course threatened to use against him. Not wanting to face 25 years to life, he agreed to 10 years. So for carrying a volunteer fire department badge he gets to go to prison for 10 years. Talk about being tough on raffles!

Mr. Niswanger filed a writ of habeas alleging his lawyer was ineffective.  Counsel apparently agreed that he told Mr. Niswanger the state's case was "rock solid" and that he was facing a sentence of 25 years to life.  Mr. Niswanger alleged his lawyer didn't do an adequate job of investigating the case, and had he done so he would have realized that there was at least an issue as to whether selling raffle tickets was an "official act" and whether a volunteer fire fighter was a "public servant".  Here's where the reasoning goes off track. Counsel stated that there was no way to investigate the case because it was essentially a policeman said vs. defendant said case. Huh? The court accepted that explanation, explaining that given the uncertainty about what the evidence would show, and the certainty about the possible punishment, it was reasonable to advise the defendant to plead guilty.

The problem I  have with that logic is that counsel has a duty to investigate, which involves more than reading the police reports. There is no indication that counsel did that in this case. What's worse is that the failure to investigate and learn about the case is used as the  reason for recommending a guilty plea. Surely we require more from lawyers than that.

The opinion gets better, because the lawyer all the sudden is given credit for being pretty bright. Mr. Niswanger alleged his lawyer should have challenged the indictment. The Court agreed there may have been defects, but that if they were challenged the State would have just re-indicted. They ignore the fact the new indictment may have contained information that was not included in the original - e.g. the facts they were relying on to show it was an offense. The Court also assumes that if that was done the State may have withdrawn the 10 year offer - even though there was absolutely no evidence that was the case. The court also assumes the lawyer considered those possibilities, and chose not to challenge the indictment. My guess is it never crossed his mind.

The end result is that a defendant gets 10 years for something that might not even be an offense. Can anyone truly say thats fair? Of course that's not the right question, because habeas corpus is not concerned with fairness. This case shows just how hard it is to obtain relief - even when it should be granted.

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Scott Henson at Grits for Breakfast recently addressed the question of whether the Court of Criminal Appeals should be consolidated with the Supreme Court. The post actually was addressed to Florida, which is considering following the Texas model and establishing a separate court to consider criminal cases. Scott's advise - don't do it.

Scott believes the CCA has become a "results oriented" court. They decide in the State's favor, and then craft a reason to support. As he describes far better than I could:

At the CCA, often the point of their rulings seems to be affirming their activist proclivities, picking which side they think should win (the state) then constructing often strained, convoluted justifications to support their desired outcome.

Shortly after reading Scott's post I was reviewing recent decisions, and came across one that could be exhibit A for his argument. The case is Sherry L ynn Smith v. State. Mrs. Smith was charged with murdering her husband and his father - supposedly for property and money. Prior to the murder she had revived a relationship with her ex-husband, who was also charged with capital murder. Apparently not having the same feelings for his former wife the ex-husband testified against her. The capital murder charge was dismissed, and he plead guilty to tampering with evidence; his sentence - 2 years, which would run concurrently with a felony theft conviction. He had been in jail for 20 months, so basically it was time served deal. Not bad for someone facing life in prison or the death penalty.

Texas has what is called the accomplice witness rule. Basically, that means that if an accomplice testifies for the State there must be something more than the accomplice testimony that connects the defendant to the crime. Legislators apparently understood that criminals are not always honest, and might tend to fudge on the facts when it would help them out.

Generally, when two witnesses are charged with the same offense they are accomplices as a matter of law - makes sense to believe that if you are both charged with the same offense you did it together. However, the Court dodged that question - as did the trial court. The Court of Appeals looked at the record and concluded the obvious  that the capital murder charge was dismissed in return for his testimony, and therefore he was an accomplice. Why they didn't rely solely on the fact that they were both charged with the same offense is beyond me. As it turns out, that was a mistake, because the ex-husband never explicitly stated the charge was dismissed in return for his agreement to testify.

The CCA seized on that, and held that "without any concrete evidence" that the charge was dismissed in return for the testimony, the ex-husband was not an accomplice as a matter of law. Seriously.

Setting aside the question of what difference is makes whether the dismissal was in return for testimony or not - you either are an accomplice or not - you have to throw logic out the door to reach that result. What would the alternative explanation be? They made a mistake when they charged him with capital murder, and there wasn't really any evidence. Or perhaps they charged him without any evidence in order to convince him to cooperate. And then there is the actual deal - he basically got time served instead of life in prison. I don't know many criminals who wouldn't throw their own mother under the bus for that kind of deal - whether either one was guilty or not.

As Scott points out, this is not the first time the Court has abandoned logic to reach the desired result. You have to wonder whether they think people actually accept their reasoning, or maybe they just don't care. Whatever the reason, it certainly doesn't do much to repair the hits the court's reputation has taken over the last few years.

I haven't really thought about it before, but Scott may be right. At the very least, the time has come to look at whether dividing appellate review is something we want to continue to do.

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Earlier I wrote about a law review article that reviewed cases where defendants had been subsequently cleared by DNA evidence. I reviewed the types of evidence which  typically lead to wrongful convictions. In this post I want to review the failure of the post-conviction process to weed out innocence cases.

The study reviewed 200 cases; out of those there were a total of 133 defendants who received written decisions in their cases 60 of those defendants raised sufficiency.of evidence claims, and only 1 was successful. The most successful claims were ones raising a state law evidence claim - if you consider 8% successful. The second most successful claim was ineffective assistance - 11%.

Eighteen of the defendants received reversals, which is a 14% reversal rate. 12 of those were retried, some of them multiple times. In contrast, in the comparison group (similar cases where there was no exoneration) the reversal rate was not much different - 10%.

One fact I found interesting was the impact of harmless error, which means the court finds there was some error but it didn't contribute to the verdict. 32% of the decisions relied on harmless error in denying relief. In 10% of the cases the court referred to the evidence of guilt as "overwhelming"!

To be fair, not all claims involve claims of innocence. In the study 25% (33 defendants) of the defendants raised innocence related claims. Only 3 were successful, all on Brady claims. Sixteen of the exonerees raised claims of innocence based on newly discovered evidence - none were successful.

The study also reviewed DNA claims. Many of defendants who ultimately were exonerated had been denied DNA testing - some on multiple occasions. There were even some who obtained DNA results, and still had relief denied.

So what does all this mean? The obvious answer is that courts do a poor job of evaluating innocence.  The study notes that factual claims are not "privileged", and that the system is skewed toward procedural claims. Part of that is the court's reluctance to second guess jury verdicts; the fact is that once you are found guilty the courts presume you are guilty. Courts must look solely at the record, which may be incomplete. As it stands now, there is no way to fill in the gaps.

Even when a direct claim of innocence is not made, it is still an issue. To obtain relief you have to show harm, which means the error influenced he trial. As the study demonstrates, courts are not hesitant to evaluate evidence of guilty. I wonder if the judges who declared evidence "overwhelming" have second thoughts - or regrets.

What all this shows is a system biased toward affirming convictions. Until courts are willing to accept responsibility for ferreting out viable claims of innocence, there will be no change. Not only is a change in the mindset needed, procedural changes are also necessary so that advocates the resources and ability to raise claims of innocence. Something must be done, because no one deserves to remain in jail for years before his innocence is recognized.

 

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Those lawyers who regularly file post-conviction motions often wonder whether the court actually reads them before they deny them. The process in most Texas counties is for the District Attorney to prepare proposed findings and present those to the judge. In the majority of cases those findings are signed without revision. I'm sure there are judges who review them to some degree, but I've also seen cases where it is obvious they didn't do anything more than put their signature on it.

I always thought the process was different in federal court. After all, they have law clerks who review everything and write memos and that sort of thing. Those are usually the top law school graduates, so you would expect them to get things right. A recent case out of the Fifth Circuit has me wondering just how much they look at what they are doing.

The case is Arnold v. Thaler, No. 08-50181 (5th Cir., January 5, 2011) The facts were pretty straightforward. Two plea offers were made, which the lawyer never conveyed to the client. Meanwhile, the prosecutor learned more about the defendant, and increased the offer. That offer - 40 years - was conveyed to the defendant and rejected. When he learned there was an earlier offer of 15 years he filed a motion for new trial. Everyone agreed that the earlier offers were never conveyed, and Mr Arnold submitted an affidavit stating if he had known of the offer he would have "considered" it. Nevertheless, the Court denied the motion. The reason was that he thought Arnold had rejected the offer; he had rejected an offer, but it was the 40 year offer and not the earlier offers. In other words, he didn't understand the facts.

The court of appeals probably recognized they couldn't affirm on that basis, so they came up with a new reason. They held that the new facts discovered by the prosecutor "changed the premises" of  the original offer. I have no idea what that has to do anything, but they thought it was important. Not wanting to confuse things, they didn't address the period between the making of the offer and the discovery of the new information - in other words the time during which the offer could have been accepted.

So now we go into federal court, and file a writ of habeas corpus. In his petition Mr. Arnold stated that if he had known of the offer he would accepted. He also submitted an affidavit stating the same thing, and explaining that is what he meant in the affidavit that was submitted for he motion for new trial. In other words he alleged everything the courts have said you need to prove to obtain relief; an offer was made and not conveyed, and had it been conveyed it would have been accepted.

This time it was the federal court's turn to ignore the facts. They denied relief, holding that nowhere in the pleadings did Arnold say he would have accepted the offer. Huh...It was in his petition and his affidavit. Maybe it wasn't all in caps. Thankfully the Fifth Circuit finally came to the rescue. They held that the district court's finding was "clearly erroneous".

You have to wonder how so many courts got it so wrong. I haven't seen the pleadings, so I don't know if there is bad handwriting or what. To be fair, I get a lot of inmate mail, and much of it is barely difficult to read and understand. They may have a good point, but it's buried in 20 pages of stuff that makes no sense, or has nothing to do with the case. Somewhere  along the line though you would think somebody would catch it.

I tend to believe that part of the problem is the desire to deny relief; no court likes to overturn a conviction, and they look for ways to avoid doing so.In fact, the whole post-conviction system is designed to prevent overturning convictions. Even with that though, there are certain claims the courts generally take seriously; the failure to convey plea offers is one of them. Courts also usually take notice when the District Attorney agrees with something.  As you can imagine, that doesn't happen often.

Some might look at this at an example of how the system works. I suppose that's true in some respects. But is that enough. Is it too much to expect  courts to get it right the first time? There were a lot of resources wasted in this case that could have been spent doing something else. I realize all courts are overworked, and have limited resources. But hey, that's what they signed up for.

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I've either been in trial or working on a complicated federal writ for the last several weeks, and haven't had a chance to write anything about the Supreme Court's decision in United States versus Padilla. The reaction to that decision has been surprisingly mixed. I would have thought all defense lawyers viewed it as a step forward. Unfortunately, some look at it as another obligation -- something else they have to do. I can't argue with the fact that determining the immigration consequences of a conviction is a difficult process, especially for non-immigration lawyers. However, it's not about us -- it's about the clients, and it is important to them.

What interests me more about the decision in Padilla is the impact it will have on prior convictions. At first blush, it would appear to have little effect in jurisdictions such as Texas, where immigration admonishes are provided. However, looking at it more closely I believe it can be a viable means to attack some convictions. There is a distinction between those crimes which automatically lead to deportation, and those where deportation is only a possibility. Where the result is known, it is not going to be enough to tell a defendant that he might be deported. That carries the possibility that he might not be. If the conviction was for something that would automatically lead to deportation, I believe a defendant may be able to challenge that conviction if he did not know that would be the result.

Of course, being able to challenge a conviction and actually being successful are two separate things. To be successful, you will have to convince the court that you would not have pled guilty had you known the consequences. When the evidence is overwhelming, and there is no doubt you would be convicted, that is going to be a difficult burden to overcome. On the other hand, if there were legitimate issues to pursue at a trial, he might be successful. Of course the problem will be that you have been deported, and many of those who qualify for relief may live no longer be in the United States.

A more interesting aspect of Padilla is the effect it may have on other cases. The courts consistently rejected claims, because they found immigration consequences were collateral. The law has always been that a lawyer does not have to advise a defendant of all the collateral consequences flowing from a conviction. To a point that is reasonable. However some consequences are so significant that no one can seriously claim it would not be an important factor in deciding to enter a plea. Four years, courts considered sex offender registration to be a collateral consequence. Now most courts make efforts to ensure that a defendant is aware of the registration requirements before taking a plea.

What else  may be collateral? One that comes to mind immediately are the surcharges imposed for driving while intoxicated convictions. Can you seriously argue that a $1000 year assessment is not a significant consequence. Hopefully, alll lawyers advise clients of that requirement. If they don't however, that could be a legitimate basis for challenging a conviction.

In the end, what is a collateral consequence that may  invalidate a conviction is probably based on at least two things. One is that it is a consequence that is automatic -- that is it is imposed in every case. The other is that it is significant, in that it has a serious impact on a person's life. If those two factors  are present I believe you have a legitimate claim, and one that is worthy of consideration.

 

In the end, instead of criticizing Padilla we need to embrace it. Not only is it a guarantee that clients will be aware of all the consequences before they enter a plea, but also may provide a vehicle for challenging convictions that were not knowingly entered into. In my mind, that can be nothing but a good thing.

 

 

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As everyone knows, Hank Skinner is scheduled to be executed today. One of his lawyers is Rob Owen. Rob is a friend of mine, and one of the best death penalty lawyers around. It takes a special kind of lawyer to devote themselves to death penalty work. They invest themselves in their cases, and developed friendships with their clients and families. They do so knowing that in the end they are going to lose most of the time. Each time they are devastated, but they pick themselves up and go on to the next case.

It’s no surprise that most of the people sentenced to death are guilty. There are always questions about whether they deserve the death penalty, or whether they received a fair trial. Seldom do you encounter someone who is actually innocent, or at least you believe they are. The stresses associated with that are enormous. The thought that an innocent person may be executed is almost too much to grasp. Rob is in that position now. I don’t know whether Hank Skinner is guilty or not. I do know that most of those questions could be answered with just a few tests.

Rob and the other lawyers representing Hank Skinner are now basically on a death watch. They have done all they can do, and all that is left is waiting. They wait for the call from the governor’s office, which will tell them whether Hank Skinner lives or dies. It’s almost like waiting in an emergency room for the doctor to come talk to you.

Their ordeal brings back memories of my own. Memories that are not pleasant. It was not long ago that I was in the same position they are, waiting for news on Todd Willingham. I had hoped up until the final call that someone was going to step in and stop the proceedings. To this day I still do not understand how so many could look the other way at compelling evidence of innocence. Yet they did. The process and procedure was more important than the result.

I would have hoped that something was learned from Willingham. If nothing else, I always hoped that it would cause courts and government officials to look twice at claims of innocence. I know there are some who still claim Willingham was guilty, but you have to look hard to find them. The evidence of his innocence is now overwhelming. That same evidence could have been presented in a hearing if only the governor or someone would have stepped in and given him the opportunity to do so. I still don’t know how anyone can live with a decision like that. Apparently it’s not a problem.

Like everyone else I will be checking the computer frequently today to see if there is any news on this case. Frankly, I’m not hopeful. Nevertheless, you can always be surprised. My thoughts are with Rob and those with him. I know no matter what happens it will be back again and somebody will be lucky to have them for his lawyer.

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If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.

The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)

After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.

There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience.  Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?

The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?

Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.

The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there  has to be better way.

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The Supreme Court recently decided a case which points out the Catch 22 faced by defendants trying to obtain relief through habeas corpus. The case is Wellons v. Hall. Like any good case it has great facts - which of course involve sex. The defendant wanted to explore contacts between the jurors and the judge and bailiff during trial. Apparently the jurors gave the judge a chocolate penis and the bailiff chocolote breasts. They also planned a reunion after trial with the bailff (maybe to make use of the gifts?) Natuarlly, this caused concern for Mr. Wellons and his lawyers.

Mr. Wellons attempted to find out exactly what happened, and got caught up in what the Supreme Court described as a "procedural morass". He tried to raise the claim on direct appeal but it was rejected because there was no record of  what happened - fair enough. He then filed a habeas petition and tried to develop the evidence. The court rejected the petition, holding it had already been decided on appeal. Not to be deterred, he sought relief in federal court, and requested an discovery and an evidentiary hearing. He was again denied, the court finding his claim was procedurally barred.

So in the end, Mr. Wellons was denied relief without the court ever actually addressing the evidence. You might find that strange - unless you are familiar with how courts handle habeas claims. Unfortunately, this happens all too often. Defendants are denied the right to develop evidence, and then the claim is denied because you have no evidence.

Mr. Wellons' case ended up as a debate over the Court's GVR (grant, vacate and remand) authority. In the end, a majority of the court vacated the decision, and sent it back to the Court of Appeals to determine whether Mr. Wellons should have been granted and evidentiary hearing. I'll leave that debate and discussion to the law professors. What I find important is the court's recognition of the procedural barriers faced by habeas petitioners.

The majority summed up the problem in a footnote:

Moreover, the allegedly “unequivocal” holding that JUSTICE ALITO quotes was preceded by a discussion of the deference owed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the “Georgia Supreme Court’s judgment as to the substance and effect of the ex parte communication.” Id., at 937. This is the classic formula-tion of a decision of whether to grant habeas relief. Indeed, it would be bizarre if a federal court had to defer to state-court factual findings, made without any evidentiary record, in order to decide whether it could create an evidentiary record to decide whether the factual find-ings were erroneous. If that were the case, then almost no habeas petitioner could ever get an evidentiary hearing: So long as the statecourt found a fact that the petitioner was trying to disprove through the presentation of evidence, then there could be no hearing. AEDPA does not require such a crabbed and illogical approach to habeas procedures, and there is no reason to believe that the Eleventh Circuit thought otherwise.

Federal habeas all too oftens involves a perfunctory review of the State court decision. As long as they gave a reason that's not completely off the wall, that's good enough. Maybe the Court wants to remind Courts that review should consist of more than that. I certainly hope so.

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Yesterday the Supreme Court issued its opinion in Beard vs. Kindler. This was a habeas corpus case. For those that don't know, habeas corpus is an incredibly complex and technical area of the law. Most decisions are based on procedure, and not on the actual merits of the case. If you want a thumbnail understanding of habeas law, just remember that everything is designed to ensure the defendant loses.

Federal habeas law is even more complex and technical. The idea is that State courts should be allowed to decide their own cases. One of the doctrines that has developed to ensure that is the "independent and adequate" concept. Simply put, if the decision is based solely on State law, a federal court will not review it. Most often that doctrine comes up in cases where the State court has decided the case on a procedural basis; in other words, the case was dismissed or rejected for some procedural reason.

Beard vs. Kindler is one of those cases. Kindler was convicted of capital murder and sentenced to death. While his appeal was pending, he escaped. He managed to remain at large for several years, and in the meantime the appeal was denied based on the fact that he had abandoned his claims by escaping. The State court reviewed the case only to determine if there was a basis for imposing the death penalty.

Kindler filed a state writ,which was denied. He then went into federal court. Although the reasons differed, both the District Court and the Court of Appeals addressed the merits of the case, and reversed. If there is one thing that has become apparent over the last several years its that a reversal in a habeas case has a high likelihood of beign reversed by the Supreme Court. So it wasn't a big surprise that the court granted review.

To consitute an independent and adequate basis, the rule must be regularly enforced. In other words, if the State courts only rarely enforce a procedural rule, they cannot argue that prevents the federal court from reviewing the case. The Court granted review in this case on an extremely narrow issue: if the court has discretion in applying a particular rule, does that mean it is not "firmly established and regularly enforced". The court answered that question in the negative, which was fairly obvious to everyone. In other words, the fact that the State court has discretion doesn't end the inquiry.

It is not entirely clear what Kindler's main argument was; it is clear the discretionary aspect of the rule was not the only argument. He also argued the rule applied by the court was not adopted until after his conviction, and therefore was not "firmly established". That would be an exepction, and the court recognized that.

In the end the Court sent the case back to the Court of Appeals to address the remaining claims. The court also refused the State's request to explain the doctrine further, and provide some guidance to the lower courts. The court's reason was that escape was not the "typical" type of default. I guess that means the court is still open to explaining the rules when a more "typical" reason comes before them.

Like the decision yesterday in Michigan v. Fisher I'm not sure this added much to our understanding of habeas law.

As a side note, Kindler is apparently an extremely resourceful criminal. He didn't escape once, but several times. The first time he went to Canada, and became somewhat of a celebrity when he fought extradition. When Canada finally gave in, he escaped again - using 13 stories of bedsheets tied together to do so. He remained on the lam for mor than two years before he was caught again. Oh yeah - he also escaped before his trial. If he llives for awhile, maybe he has a future as a consultant for prison security.

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Every year thousands of people ask the Supreme Court to review their case; the Court agrees to review only a handful. Generally, they will not agree to hear a case unless there is some issue they want to address; they either want to change the law, or maybe clarify. it For the most part, they could care less whether the lower courts reached the right result.

So when the court agrees to hear a case you generally expect some change in the law. The expectations were no different Michigan v. Fisher. The case involved the emergency search exception. Officers had been dispatched to a disturbance, and found a truck with a smashed windshield, damaged windows in the house, and blood on the hood of the truck. The saw Mr. Fisher inside the house - he was throwing things, and had a cut on his hand. The officers tried to enter, but the door was locked. When they asked Fisher if he needed help, he not so politely asked them to get off his property. When when officer tried to push the door open and enter the house, Fisher pointed a gun at him. Entry was eventually made, and Fisher was charged with assault with a dangerous weapon and possession of a firearm.

The Michigan trial court held a hearing, and decided the entry into the house was unreasonable. THe caes went back and forth, but the Michigan Court of Appeals eventually agreed with the trial court and affirmed its decsion. On Monday the Court reversed, and sent the case back to the Court of Appeals.

The unusual aspect of this case is not that the court reversed, but the grounds for doing so. Basically, they held the lower court reached the wrong result. The court didn't set forth any new law, or explain in more detail existing law. The opinion appears to be nothing more than a disagreement with the lower court - a court which found in favor of a defendant.

The court held in 2006 in Brigham City v. Stuart that police could enter a home where there was a "need to assist persons who are seriously injured or threatened with such injury". The court did nothing to explain or alter that holding. In fact they held that a "straightforward application of the emergency aid doctrine" dictates that the entry was reasonable.

So why did the court need to find the officer's actions were reasonable? That is something normally left to trial judges. There was no suggestion the trial judge didn't understand the law, or misconstrued it -he just reached the wrong result in the court's eyes.

I find it interesting that Justice Sotemayor joined Justice Stevens in dissenting. They both felt the court had no business making such "fact intensive" decisions. I don't  know if that says much about her views on the fourth amendment, but it does say something about her view of the role of the 'Supreme Court.

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

 

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The Texas Court of Criminal Appeals issued a significant opinion today on DNA testing. In Esparza v. State the Court reversed both the trial court and the Court of Appeals, both of which had denied his request under Chapter 64 for post-conviction DNA testing.

Esparza had been convicted of aggravated sexual assault. He met two women at a bar, and ended up giving them a rode home. On the way, he raped one, the other got away. The actual victim could not identify him, but the other woman did, as well as another person at the bar. Additionally,  he had given them a business card, with his name on it. He denied guilt at trial, and presented an alibi. The jury ultimately convicted him, and sentenced him to life.

In rejecting his request for DNA testing, the court focused on two things. One was that victim admitted she had sex 2 days earlier. The court concluded that because of that, evidence of a third party donor would be meaningless (the trial attorney actually admitted this at trial, although I can't come up with any rational explanation for making such admission). In other words, the court found that she had sex with someone else, if the testing excluded Esparza it must be the other person.

The CCA (yes, the one with Sharon Keller) found several problems with that argument. The most glaring was that it was based entirely on assumptions. One assumption was that  her partner ejaculated in the other incident. Another assumption was that she didn't do anything to clean herself up in the interim. And finally, there was no testimony that there would still be evidence to recover from an incident two days earlier. In other words, you have to more than guess; your guess has to actually be supported by the evidence.

The Court concluded that if the DNA tests excluded him, there is a reasonable probability he would not be convicted.

You still have the identification, which appears fairly supported because of the business card. (BTW - it showed him working as a paralegal for the lawyer who ended up defending him at trial) The court's rejection of this argument is truly astounding. They held that the eyewitness identification of the two witnesses was "of no consequence". They also held that:

In sexual assault cases like this, any overwhelming eyewitness identification and strong circumstantial evidence (e.g. Esparza's business card, light-blue four door car, age and the fireworks on the floorboard) supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exlculpatory DNA evidence would prove his innocence under Art. 64.03.

Maybe I'm reading too much into it, but to me that suggest the Court has finally recognized just how unreliable eyewitness testimony really. It's no longer enough to say you have an eyewitness ID, even if supported by other evidence. I think that has application in other cases; not just Chapter 64 requests.

I can't believe I'm happy about a Court of Criminal Appeal opinion. but I am. I'm not expecting this to be a trend though.

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The case against Charles burst into the news last year when his lawyers discovered that the Judge who presided over his case was in a relationship with the District Attorney at the time of the trial. Needless to say, they had done everything possible to prevent anyone from finding out. While that is interesting enough, the case becomes more interesting when you learn that the judge went on to serve on the Court of Criminal Appeals for a period of time; the same court that will have to decide the habeas petition filed by Mr. Hood.

Last week, the current trial judge entered findings in the habeas proceeding. Among other things, he found that Mr. Hood could not be faulted for not raising the issue sooner. Predictably, the State had argued that the issue had been waived because he had waited too long to raise. To his credit, the judge found the fault for not raising the claim earlier lay on the District Attorney and the Judge; they went to great lengths to cover up the relationship, and shouldn't be allow to benefit from their success in doing so.

The case now goes to the Court of Criminal Appeals - several of whom served with the Judge. They have to decide whether to accept the findings, and if they do, what to do with the case. CBS news reporter Andrew Cohen seems to think there is no way Hood will not get a new trial.  I'm not so sure; the Court certainly has a history of rejecting equally compelling claims.

If the court frames the issue as whether the judge was impartial, they could look at the decisions made during trial. They might conclude it did not appear she was favoring the State. Of course, that doesn't pass the smell test, but neither does many of the things the Court does.

Mr. Cohen also suggests the current DA follow the lead of the U.S. Attorneys in the Ted Stevens case, and dismiss the prosecution. The problem is that they have no authority to do so. Mr. Hood has already been convicted, and sentenced. The only one who can undo that is the Court of Criminal Appeals. They could agree that the a new trial should be granted, but the final decision is still up to the court. They do not have to accept the State's recommendation, and they have found against defendants before when the court and prosecutor both believed relief should be granted.

I believe this may be a test for the court.. They have certainly done much to bring disfavor on themselves. This would be an opportunity to start on a different direction. While a decision to grant relief in this case won't solve their credibility problem, it won't make it worse. On the other hand, public opinion of the Court can't get much worse.

We have become conditioned to have low expectations of the Court, espeically in death penalty cases. I

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If you ever wondered why many people have such a poor opinion of the justice system, it's because of cases like Carl Wayne Buntion. The Fifth Circuit recently reversed a order from the Federal District Court which  had granted relief from his death sentence. The District judge concluded the trial court judge was biased, and therefore Buntion did not receive a fair trial. The Judge was William Harmon from Houston, who among other things, put up a post card of "hanging judge" Roy Bean during the trial. He also made the statement that he was "doing God's work" to see that Buntion was executed. If that wasn't enough, he changed several rulings after calling the District Attorney's office during trial, and getting advice them. He also tried to remove one of the lawyers, and then realized he couldn't do that. When the lawyers tried to have him removed, he threatened to accuse them of possessing drugs if they didn't stop challenging his behavior.  The  truly amazing thing is that most of the allegations were not disputed.

It's not too difficult why the federal district judge concluded the judge was biased. He obviously saw what happened, and knew something needed to be done.

Obtaining relief in a federal habeas proceeding is an extremely difficult thing to do. Much of the difficulty is the result of the standard of review. The courts are reviewing State court decisions, and will not second guess them unless they really stepped out of line. That means a federal court can believe a state court made the wrong decision, and still not grant relief. In a convoluted legal decision, the Fifth Circuit held the District Court should not have granted relief. That means Buntion is likely to be executed, after a trial presided over by a judge who at the very least did not comport himself to the standards we expect from judges.

It is difficult to imagine how anyone could think Buntion received a fair trial. The court noted the judge's action should not be commended (duh!), but apparently they were not so far out of line to establish bias. You have to wonder what else would it take. I'm sure most people expect more from their judges. Thankfully, this is a rare situation. However, that does not excuse a refusal to act. I'm sure Mr. Buntion and his family are not comforted by the assurance that this is a rare occurrence

If we expect the public to have any confidence in our system of justice we have to be willing to take action when the system breaks down. Unfortunately, that didn't happen  here.

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For most lawyers, the ultimate achievement is to argue before the United States Supreme Court. Lawyers spend hundreds of hours working on the briefs, and preparing for the argument. You expect the justices to pepper you with questions, and try to anticipate what they are going to ask. Most lawyers will even set up mock arguments to find out the best way to handle questions. Few lawyers expect to actually get into their argument, and try to advance the arguments through their answers. Not having appeared before the Court, I assumed all the Justices got involved. As a result, I was surprised to learn that Justice Clarence Thomas is the exception. According to a recent article, he has gone two years and more than 142 cases without asking a question. According to Justice Thomas, he believes he can do the job without asking a question.

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