Court allows execution to proceed after receiving evidence of prosecutorial misconduct

Last Tuesday night the State of Texas murdered Alvin Braziel - despite the fact prosecutors admitted, hours before the scheduled execution that they had committed prosecutorial misconduct during the trial.

Nevertheless the Court of Criminal Appeals stepped aside and allowed the execution to proceed - once again demonstrating why the men and women who sit on that court are called Judges and not Justices.

Tom D'Amore and George West were the prosecutors who tried the case. Mr. D'Amore contacted Mr. Braziel's attorneys the night before the scheduled execution and told them that Mr. West had deliberately provoked a reaction from the victim's wife by showing her an autopsy picture of her dead husband. When Mr. Braziel asked for a mistrial after her outburst, the court denied the request after Mr. West assured the court that he had not intended for the outburst to occur.

Mr. Braziel's attorneys petitioned the trial court to call off the execution. The court said it would if they were sent a sworn statement from Mr. West. However, even after receiving the sworn statement, the trial court tossed it in the trash and washed its hands of the matter. His attorneys filed a similar request with the Court of Criminal Appeals at 5pm stating that this information only came to them the night before.

"It is axiomatic that a death sentence is irreversible and no one could reasonably believe that it should be carried out with such serious allegations of possible prosecutorial misconduct pending." -- Judge Elsa Alcala

Over dissents from Judges Elsa Alcala and Scott Walker, the Court of Criminal Appeals declared that it didn't care that a mistrial should have been declared and refused to halt the execution.

After he was strapped down to the gurney in the death house, Mr. Braziel apologized to the victim's widow for killing her husband.

This was never a case about mistaken identity or wrongful conviction. Mr. Braziel raped a woman and killed her husband. But when the Court of Criminal Appeals says that it couldn't care less if the state committed prosecutorial misconduct at trial, the Court is saying that it has little interest in guaranteeing a fair trial for those accused of criminal conduct.

It is entirely possible, and very probable, that a second trial would have produced a similar result. In fact I would be surprised if a second jury didn't convict Mr. Braziel and sentence him to death as well.  If the widow's outburst hadn't occurred it's also very likely that the verdict and sentence would have been the same. But, the state shouldn't be given a pass on their conduct just because it's a bad case with bad facts for the defendant.

Oh what a relief it is (finally)

Now I don't usually take to these pages with a self-congratulatory blog post after getting a positive result. That's self-serving and doesn't serve the purpose for which I started up this blog almost six years ago.

But yesterday I got to do something pretty damn cool. I got to call up a client and tell him that his felony dope conviction was overturned by the Court of Criminal Appeals. After almost two years and two previous denials of relief, the CCA granted our writ on the third attempt.

Our work to reverse the conviction came about when it was revealed that a DPS lab analyst, Jonathan Salvador, had been caught faking test results in drug cases. At first the writs were being granted and convictions were being reversed - until someone in Austin realized just how many cases were affected. We certainly couldn't have a bunch of judges in Austin reversing thousands of felony drug convictions just because the lab analyst was caught cheating now, could we?

The Court tried to make it harder to obtain relief by making applicants show a pattern of misbehavior on the part of Mr. Salvador. That hurdle was overcome when it was discovered that there were other tests that appeared to have been faked over the years.

Credit must also go to Galveston County District Attorney Jack Roady who made a decision that his office would be more interested in seeing that justice was done than in preserving convictions. Assistant District Attorney Virginia Jones who is a fellow marathoner (but a whole lot faster than me) and works in the appellate division of the office also deserves credit for the integrity she displayed during the entire episode.

And, while I'm doling out huzzahs, a final one goes out to the Honorable Bret Griffin, the Presiding Judge in the 212th Judicial District Court in Galveston County. When we sat back in his chambers a few months ago after our second request was denied by the CCA, he told us that he thought the Court's decision in the Coty case was wrong.

In the end my client is happy now that this five-year long roller coaster ride is over. And that's one of the reasons we do what we do.

Merging courts a bad idea

In the aftermath of Reconstruction, the people of Texas decided they wanted to keep the government as weak as possible so as to avoid anyone consolidating power like the Reconstruction governors had. It's why we have partisan elections for judges and why we have two high courts. The Supreme Court hears civil and juvenile appeals while the Court of Criminal Affirms Appeals only hears criminal appeals.

Oklahoma is the only other state with a bifurcated high court system - though other states have looked at the idea of dividing their high courts to deal with massive backlogs.

State Representative Richard Pena Raymond (D-Laredo) has filed a bill that would do away with the Court of Criminal Appeals and consolidate appellate authority in the Supreme Court. More than one practitioner has said it couldn't be any worse than the current arrangement. Taxpayers would probably be on board since it would reduce the size of state government.

But would it be a good idea for Texans accused of criminal activity?

In Texas most district and county courts are courts of general jurisdiction and handle both civil and criminal cases (Harris County has dedicated criminal and civil courts). The first level of appellate courts are also courts of general jurisdiction and handle both civil and criminal appeals.

But when those cases are appealed they are split between civil and criminal. The justices on the Supreme Court are all civil attorneys who either practiced with a white shoe firm or were golfing buddies with a friend of Governor Goodhair. The judges (because there is no justice in the Court of Criminal Appeals) on the CCA are mostly former prosecutors and lower-level judges who have a good deal of familiarity with criminal law (and even know that there are ten amendments in the Bill of Rights, though at least one of them is honored more in the breach than in the observance).

Most of the criticism of the CCA is directed at its presiding judge, Sharon Killer Keller who sent one man to his death apparently just because she could.

This is not the first time someone has proposed merging the two courts. The matter has appeared on the ballot as a constitutional amendment and has been put forward as a bill many times in the past. But the idea has never passed muster with the voters or with the state legislature.

Republicans wanted to merge the courts when the Democrats were in power. Democrats want to merge the courts now that the Republicans have taken over the state.

The simple fact of the matter is that there is too big a caseload for any one court to handle. Sure, there's only one high court in the United States and it hears only a few cases a year. The vast majority of cases are refused.

The only way to make a unified high court work in Texas would be to restrict the number of cases that come before it. That means even more cases will die on the vine of the Courts of Appeal. It means that more Texans will see their day in court go up in flames because, as former Supreme Court Justice James P. Wallace once said "There's only 24 hours in a day..."

I've written here before that our method of picking judges is not the best way to do it. No one outside the courthouse knows anything about the candidates other than their party affiliation. Every election cycle good judges are swept out of office simply because they chose the wrong year to have that D or R after their names.

But what's the alternative? I don't want the government appointing judges who will then stand for periodic retention elections. That's not democratic. I don't want nonpartisan elections because that will only mean more campaign money coming in from folks who have an interest in what goes on in a given courtroom. And I don't want a unified court just because 48 other states have one. Consolidating the courts would concentrate too much power into too few hands and would make it harder to have a case heard at the highest level.

I'm sure there's a better way to do this, but I'll be damned if I can figure it out.

No means no, unless it doesn't

"Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes." -- Tennard v. State, 802 SW2d 678, 683 (Tex.Crim.App. 1990)

That pronouncement by the Court of Criminal Appeals seems to put the matter of the admissibility of polygraph examinations to bed. The Court was concerned about the lack of reliability of a "test" that relied entirely upon the interpretation of one person.

William Leonard pled guilty to felony injury to a child and was placed on five years deferred adjudication. In other words, Mr. Leonard entered a guilty plea before the bench and the judge deferred a finding of guilt until a later date. If Mr. Leonard could complete his probation successfully, the case against him would be dismissed.

But, since we're discussing Mr. Leonard's case in this forum, you know it did not end well for him. As part of his conditions of probation, Mr. Leonard was required to attend counseling sessions for sex offenders and to submit to polygraph examinations.

On several occasions the polygraph examiner determined that Mr. Leonard was being deceptive. As a result he was discharged from the counseling sessions. The state then filed a motion to adjudicate Mr. Leonard's guilt. For those of y'all not familiar with the peculiar ways of the Lone Star State, a motion to adjudicate guilt is the way in which a prosecutor seeks to have a judge enter a finding of guilt in the underlying case. At a hearing before the court, the state argued that Mr. Leonard had been "unsuccessfully discharged" from the counseling sessions and that he had failed to make satisfactory progress in his treatment.

At the hearing the state called George Michael Strain, the psychotherapist who booted Mr. Leonard from the program. Mr. Strain testified that he kicked Mr. Leonard out of the program due to his failing five polygraph examinations. Mr. Leonard objected to the admissibility of the tests. The court, overruling Mr. Leonard's objections, granted the state's motion and entered a finding of guilt in the case.

On appeal, the Eastland Court of Appeals, in Leonard v. State, 315 SW3d 578 (Tex.App.-Eastland 2010), reversed the finding of guilt and ordered the case back to the trial court on the grounds that the results of the polygraph tests were inadmissible.

Well, that didn't sit too well with the District Attorney who appealed to the Texas Court of Criminal Appeals.

Judge Lawrence Meyers wrote for the 5-4 majority that in an administrative hearing the results of a polygraph examination are admissible because the judge isn't determining guilt and because there is no jury to be confused by the evidence. The Court held further that the failed test results were admissible as they were the basis of an expert's opinion as to why Mr. Leonard was discharged from the counseling program.

There were a couple of things that struck me as odd in that opinion. First, the Court had made it crystal clear in 1990 that the results of polygraph examinations were inadmissible for "all purposes." Not much wiggle room in that now, is there? Even though Judge Meyers makes a distinction between a trial and an administrative hearing, the Court made no such distinction in 1990. The Court wasn't presented any evidence that the tests were any more reliable in 2010 than they were in 1990.

Second, Judge Meyers was just plain wrong when it came to his rationale for admitting the test results in a hearing on a motion to adjudicate. Yes, it's an administrative hearing. Yes, the state's burden of proof is much lower than at trial. But, and this is a very big but, the entire purpose of the hearing in Mr. Leonard's case was to determine whether or not he was to be adjudicated guilty of the underlying offense. In other words, the judge was determining guilt.

In her concurring opinion, Judge Barbara Hervey acted as a mouthpiece for prosecutors when she said that issues of admissibility of scientific evidence were the purview of the trial courts, not the appellate court. I guess she would just as soon sidestep the entire issue of court precedent.

Apparently she was quite upset that Judge Cathy Cochran dared to write about the dearth of evidence that polygraph exams are reliable. Of course Judge Cochran was just following the principle of stare decisis as the trial court had not conducted a gatekeeper hearing to determine the admissibility of the test results.

Apparently conservative judges can be quite the little activists when it comes to finding ways to affirm convictions.

Bennett for Court of Criminal Appeals

If there was ever a place that needed a proponent of limited government it is the Texas Court of Criminal Appeals. In no other area is the need to limit the power of the government quite as profound.

The government has the power to take away a man's life - either by force or by time. It is the most frightening power imaginable and it is that power that must be limited. And the most effective way to limit that power is to enforce the right of the people to be left alone by the government.

That right, in turn, is protected by the Fourth, Fifth and Sixth Amendments. The courts have only been too happy to ignore the words in the Constitution and substitute their notion of judicial efficiency and economy in their place. In order to affirm lower court decisions, our appellate courts have looked for every possible way to justify actions of the state that violated the provisions of the Fourth, Fifth and Sixth Amendments.

Into the void must step a person who is willing to stand alone to defend those rights.

Mark Bennett is that person.

Mark can be abrasive. He can be snarky. He can be a tad bit arrogant. But he is also a man of conviction. He is a man who believes that the power of the government must be limited by enforcing our right to be left alone.

Mark Bennett is running for a seat on the Texas Court of Criminal Appeals as a Libertarian.

Now if you're happy with the current state of the criminal (in)justice system in Texas, Mark isn't your man. If you think it's okay for the Chief Judge to shut down the clerk's office to prevent a man's attorneys from filing a last minute pleading, then Mark isn't your guy. If you don't understand that when the state takes away the rights of those people, that they are taking away your rights, then Mark isn't for you.

But if you believe that right must trump expediency, then you need to get out and vote for Mark Bennett.

See also:

"Mark Bennett, Court of Criminal Appeals," Simple Justice (March 5, 2012)

Court stays Skinner execution

On Monday afternoon the Texas Court of Criminal Appeals stayed Texas' planned killing of Hank Skinner on Wednesday night.

The Court issued the stay to allow Mr. Skinner to litigate the issue of whether or not he is entitled to have DNA tests run on items taken into evidence by investigators. The laws regarding post-conviction DNA testing changed after Mr. Skinner was convicted of killing his girlfriend and her two adult sons back in 1993, but the new law was never applied in Mr. Skinner's case.

Last week Gray County District Judge Steve Emmert denied Mr. Skinner's request to test the items.

Next to Mr. Skinner, the happiest person in the room is Gov. Rick Perry who dodged having to decided between killing a man and granting a 30-day stay so that the matter could be litigated. With his presidential campaign taking on water at a rapid pace, he couldn't have been happy with the choice that was put before him.

By now we should all be aware that you don't walk out of a courtroom knowing the truth. You walk out of the courtroom with a verdict. There is a big difference.

Mr. Skinner was convicted of three murders. That jury decided it was appropriate for the state to kill him. But, if we're going to allow the state to take lives, shouldn't we at least make certain that the right person is being killed? DNA testing was not performed on certain pieces of evidence - that was a tactical decision by Mr. Skinner's attorney. That decision may have been right or it may have been wrong.

But the fact remains that the items were never tested.

The results of the testing may or may not prove Mr. Skinner's innocence. The fact that someone else's DNA is on those items doesn't mean that Mr. Skinner didn't commit the crimes for which he was convicted; but it does cast more than a shade of doubt on that determination.

And if we're going to sit back and watch the government exercise its greatest power - the power to take a life - then we damn well better be certain that the person strapped to that gurney did the deed.

Skinner stay of execution

Attacking their own

The Republican primary for Presiding Judge of the Texas Court of Criminal Affirms Appeals should be a most interesting affair as a sitting judge, Lawrence Meyers, challenges the incumbent, Sharon Killer Keller.

Judge Meyers was elected to the highest criminal court in the state in 1992, after serving on the Fort Worth Court of Appeals from 1989-1992. Prior to serving on the appellate bench, Judge Meyers practiced civil, criminal and appellate law in Fort Worth. Before moving to Fort Worth in 1975, Judge Meyers was a prosecutor in Kansas.

Judge Meyers authored the Court's opinion in Ex parte Elizondo, 947 SW2d 202 (Tex.Crim.App.2002) in which the court held that the Due Process Clause of the US Constitution "forbids, not just the execution, but the incarceration as well of an innocent person." Judge Killer Keller, on the other hand, joined in the dissent, on the grounds that reopening cases to determine whether the defendant was, in fact, innocent, threatened the "finality" of jury verdicts. Heaven forbid!

Judge Killer Keller is best known for ignoring protocol and closing the court to prevent Michael Richard's attorneys from filing a last minute appeal on the afternoon of his scheduled execution. Judge Killer Keller was found to have violated the rules of the court and was issued a public warning for her actions. The decision was later overturned as the Commission on Judicial Conduct was not authorized to issue a public warning. Judge Killer Keller is also known as Judge No as she is consistently dissenting from court opinions recognizing that the Bill of Rights contains protections for criminal defendants.

The mere fact that a fellow member of the CCA is challenging the presiding judge is telling. The fact that both judges are Republicans should make it clear that many in the GOP have grown weary of Judge Killer Keller's act. Through her actions in the Michael Richard affair, the Presiding Judge brought disdain and ridicule to the Court.

This one race might be enough to encourage Democrats to cross over and vote in the Republican primary next spring to oust Judge Killer Keller from the bench.

Splitting hairs and denying relief

In 1999, Neal Hampton Robbins was convicted of capital murder in the death of his girlfriend's 17-month-old child. In 2011, the Texas Court of Criminal Appeals denied his request for relief due as a result of "false or misleading testimony."

During the investigation into the death of the child, Dr. Patricia Moore of the Harris County Medical Examiner's Office was asked to conduct an autopsy. She concluded in her report that the child died due to "asphyxia of the chest and abdomen" and that the child was the victim of a homicide. At trial, the defense expert, Dr. Robert Bux of the Bexar County Medical Examiner's Office testified that the cause and manner of death could not be determined.

In 2007, Dr. Dwayne Wolf of the HCMEO was asked to review Dr. Moore's findings in the case. In May of that year, Dr. Wolf amended the death certificate to indicate that the cause and manner of death could not be determined. Dr. Moore's supervisor at the time of the autopsy, Dr. Joye Carter, told Montgomery County prosecutors that she concurred with Dr. Wolf's findings.

Then Dr. Moore sent a letter to the Montgomery County DA's Office and stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of undetermined, undetermined is best for this case.

Dr. Moore went on to state that since the date of the autopsy she had received additional training and believed that the bruises on the child's body could have been caused by aggressive CPR or other attempts to revive the child.

In June 2007, Mr. Robbins filed a writ of habeas corpus asking that his conviction be vacated as the result of newly discovered evidence. The State of Texas, in its initial response, concurred. The trial court, however, appointed another forensic pathologist to review the documents in the case. Dr. Thomas Wheeler of the Baylor College of Medicine also concluded that the cause and manner of death could not be determined.

A Montgomery County Justice of the Peace then appointed another forensic pathologist to review the case. This time the state got what it wanted - Linda Norton concluded that the child was suffocated. She said she believed the child was murdered but could not state beyond a reasonable doubt that Mr. Robbins killed the child.

In August 2008, both Mr. Robbins and the state prepared findings of fact and conclusions of law stating that Mr. Robbins was entitled to a new trial. However, after Ms. Norton reaffirmed her opinion that the child was murdered, the state changed its tune and urged the court not to grant any relief to Mr. Robbins.

In January 2010, the trial court denied relief for Mr. Robbins stating that the changed opinion of an expert witness was not sufficient to overturn a jury's decision to convict.

Last month the Texas Court of Criminal Appeals ruled that since Dr. Moore's trial testimony hadn't been proven false, that Mr. Robbin's claim of actual innocence failed. The majority found that Dr. Moore's changed opinion did not render her trial testimony false. The court relied on the fact that Dr. Moore testified "openly" about her findings and conclusions.

The court's rationale was that no one testified that Mr. Robbins didn't commit the murder.

Here, similar to the criminalist's testimony that she could not positively identify the sample, cross-examination by the Applicant established that Moore's testimony was her professional opinion and that she was not ruling out other reasonable hypothesis by which Tristen died. In addition, like the criminalist's testimony, that asphyxia was the cause and homicide the manner of Tristen's death has not been entirely refuted. As the convicting court determined, "[n]o expert rules out asphyxia as the cause of death," "[n]o expert can exclude Applicant as the perpetrator if it is a homicide, and no expert has excluded homicide as the manner of death." During the habeas proceedings, various experts have opined that the autopsy findings do not adequately support Moore's conclusion that the death was a homicide by asphyxiation (and Moore herself has adopted that position, but none of the experts have stated that Tristen could not have been intentionally asphyxiated. And although they critique Moore's interpretation of the petechiae evidence upon which she relied at trial, the "non-specific" indicator cannot be ruled out as being the result of asphyxiation. On the other hand, at least one well-qualified pathologist, Dr. Norton, has concluded that the child was a victim of homicide by asphyxiation.

In dissent, Judge Alcala (the newest member of the panel) argued that the majority was splitting hairs and denying Mr. Robbins the relief to which he was entitled. She wrote:

The record shows that, as the sole witness establishing cause and manner of death for the State at Robbins's trial, Dr. Moore testified that, based on her scientific opinion beyond a reasonable doubt, the cause of Tristen Rivet's death was asphyxia due to compression of the chest and abdomen, and the manner of death was homicide. In her evidence concerning this application for a writ of habeas corpus, she now concludes that the cause of death was, beyond a reasonable doubt, not compression asphyxia, and undeterminable as to homicide, asphyxial or otherwise. Dr. Moore's subsequent testimony is a complete refutation of her trial testimony because, although her trial testimony stated that, beyond a reasonable doubt, the cause of death was compression asphyxia and the manner of death was homicide, she now says that the cause and manner of death are, beyond a reasonable doubt, "undeterminable." Both positions cannot be true. This wholesale refutation of her previously professed scientific certainty nullifies the veracity of the conclusion itself... 

Perhaps Dr. Moore's testimony could not be called "false" if, for example, she consistently determined, beyond a reasonable doubt, that the manner and cause of death could be established with scientific certainty and that the manner of death was homicide, but was uncertain whether the cause of death was asphyxia by some means other than compression. See Berger v. United States, 295 U.S. 78, 82 (1935) ("The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused."). But Dr. Moore's changed testimony is not merely a variance in proof. Her present position acknowledges that the cause and manner of death could possibly be natural causes or homicide and that both are equally likely. An acknowledgment that trial testimony could possibly be correct because no one can determine the cause and manner of death with scientific certainty is vastly different from evidence that the cause and manner of death are proven beyond a reasonable doubt with scientific certainty. I, therefore, agree with the trial court's assessment that the record shows that Dr. Moore's testimony was false.

Mr. Robbins should receive a new trial. While Dr. Moore didn't lie on the stand during Mr. Robbins' trial, she has re-evaluated her findings and she has come to a new conclusion. That new conclusion contradicts the testimony she gave at trial. Had the jury heard this new testimony, the question becomes was there a murder?

I think we owe it to Mr. Robbins to find out.

Court holds that reasonable suspicion cannot be developed retroactively

Can the police develop reasonable suspicion to make a traffic stop after the fact? When put that way, the obvious answer is no. If reasonable suspicion is required to make a traffic stop, one either has it at the time of the stop or doesn't.

But, to the courts, it wasn't such an obvious answer. At least before the Texas Court of Criminal Appeals issued its ruling in Martinez v. State, Nos. PD-1238-10 and PD-1239-10 (2011).

Police in Del Rio, Texas were notified by an anonymous caller that someone was acting suspicious and  had put two bikes in the back of a blue pickup. Officer Hurley spotted a pickup that looked blue and began following it. After following the truck for four blocks, and not seeing any traffic violation, Officer Hurley stopped the truck.

When he walked up to the truck, the officer noticed two bikes in the bed. Upon contacting the Mr. Martinez, Officer Hurley noted a strong odor of alcohol and glassy eyes. To no one's surprise, Mr. Martinez was arrested for driving while intoxicated. To make matters worse, Officer Hurley also found a usable amount of marijuana after the DWI arrest.

Mr. Martinez filed a motion to suppress the stop, arguing that there was insufficient basis to stop his truck since the caller was never identified. He also argued that Officer Hurley lacked reasonable suspicion to make the stop. The trial court denied his motion and Mr. Martinez pled guilty to both charges. The Court of Appeals upheld the trial court's ruling.

The Court of Criminal Appeals then ruled that the officer lacked reasonable suspicion to make the stop. While the caller was never identified, she did appear at the scene following the traffic stop. However, the basis of the stop must be determined by the facts at the time of the stop, not by what the officer learns after making the stop. In this case, the officer had a tip from an anonymous caller. He never observed a traffic violation. He didn't find the bikes in the truck until after he made the stop. But for the illegal stop, he never would have noted any signs of intoxication; and, he never would have discovered marijuana in the truck but for the DWI arrest. In other words, in order to effect a traffic stop, the police must have specific articulable facts indicating that criminal activity is afoot before making the traffic stop. Any reasonable suspicion developed after the stop cannot be used to justify the stop in the first place.

The Court of Criminal Appeals reversed the conviction and remanded the case for further proceedings.

Texas court lowers the standard for reasonable suspicion

Over the years court have continually lowered the standard by which a police officer may intrude upon the liberty of an individual. A law enforcement officer in Texas can stop a motorist on what the law calls "reasonable suspicion." A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot.

If the officer can't do it, then there was no reasonable suspicion and the stop is deemed illegal.

Well, at least that's the way we learned it.

According to the Texas Court of Criminal Affirms Appeals, a person's strange, non-criminal behavior, can give rise to reasonable suspicion that he would soon engage in a criminal act.

In Derichsweiller v. State, No. PD-0176-10, (Tex.Crim.App. 2011), an officer was called out to a Wal-Mart parking lot after a couple in the McDonald's drive-thru called 911 about a man who drove up alongside their car and grinned at them. He drove around the restaurant and stopped and grinned a second time before driving off into the Wal-Mart parking lot.

There were no allegations that Mr. Derichsweiller was doing anything illegal -- just weird. The officer stopped Mr. Derichsweiller while he was circling the Wal-Mart parking lot. The officer didn't witness Mr. Derichsweiller doing anything remotely illegal. Of course after he stopped him, the officer noted a strong odor of alcohol and then commenced a DWI investigation. And Mr. Derichsweiller had two prior DWI convictions.

The trial court found no problem with the stop and denied Mr. Derichsweiller's motion to suppress. The Court of Appeals, on the other hand, had a problem with the stop and reversed the trial court on the grounds that neither the officer, nor the couple at the restaurant, witnessed any behavior that suggested Mr. Derichsweiller was involved in criminal conduct.

The Court of Criminal Appeals disagreed and stated that

[w]hile it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant's conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability--a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.

So now what does "reasonable suspicion" even mean? Does it mean anything? Sure, Mr. Derichsweiller's behavior was bizarre, to say the least, but does it follow that bizarre behavior now gives rise to reasonable suspicion that someone is about to commit a crime?

Reasonable suspicion of what? The facts pointed to no criminal offense. The officer's observations of Mr. Derichsweiller's driving pointed to no criminal offense. It would appear that the court's decision had more to do with finding a way to uphold a felony DWI conviction than upholding the Constitution.

Texas court gives checkpoints the thumbs-up

Back in February 2006, Gerardo Lujan and a passenger were driving around when they came across a checkpoint set up for the (alleged) purpose of checking for valid driver's licenses and insurance. According to police, if a motorist showed a valid license and proof of insurance, he was sent on his way. If a motorist did not have a valid license and proof of insurance the officers would cite them and check for other violations and for warrants. Of course the police had a K-9 unit on hand.

Coming soon to a town near you?

Upon being stopped, Mr. Lujan told the officer he did not have a driver's license. He was told to pull over at which time police questioned his passenger - who was not carrying a license either. The two men gave officers similar stories of where they had been (the only significant difference being the name of the friend they were visiting). A check showed the passenger had outstanding warrants and he was taken into custody. All of this without any evidence that the passenger had committed any criminal act.

After placing the passenger under arrest the officer informed Mr. Lujan that he needed to pat him down for safety reasons (again, no reason given). Lo and behold, the officer discovered over $1,000 in cash in Mr. Lujan's pockets (no crime in carrying cash). The officer then asked for permission to search the car and Mr. Lujan (apparently in the midst of a brain fart) consented. Needless to say the police found cocaine hidden in the passenger-side door with the help of their drug-sniffing canine friend.

While the trial court (surprise, surprise) denied Mr. Lujan's motion to suppress, the El Paso Court of Appeals overturned the conviction on the grounds that the checkpoint violated Mr. Lujan's Fourth Amendment right against unreasonable search and seizure.

The Texas Court of Criminal Appeals then reversed the Court of Appeals' ruling and reinstated the conviction. One of the reasons given for the reversal was that without findings of fact and conclusions of law from the trial court, the CCA was left to assume that the trial court made implicit findings of fact consistent with the evidence on the record. The CCA found that the checkpoint was valid because they could interpret, from the record, that the primary purpose of the checkpoint was to check driver's licenses and insurance and that the police would only investigate other potential criminal acts if warranted by their observations.

Said the Court:

If the primary purpose of the checkpoint is lawful- a license check as opposed to general law enforcement-police can act on other information that arises at the stop. The checkpoint's primary purpose of license and insurance verification does not prohibit police from considering other unrelated offenses that they discover during the stop. Edmond, 531 U.S. at 48. In Edmond, the Supreme Court made clear that officers are not required to conduct the license and registration check wearing blinders and ignoring any other violations of the law that they observe. Officers can still act on what they learn during a checkpoint stop, even if that results in the arrest of the motorist for an offense unrelated to the purpose of the checkpoint. Id.

A brief suspicionless stop at a checkpoint is constitutionally permissible if its primary purpose is to confirm drivers' licences and registration and not general crime control. Id., at 39. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was a permissible license and insurance check. Ross, 32 S.W.3d at 855.

With its ruling in Lujan v. State, No. PD-0303-10 (Tex.Crim.App. 2011), the Texas Court of Criminal Appeals is signaling to law enforcement that sobriety checkpoints may just be alright in the Lone Star State. The rationale from the Court seems to be that so long as the police can claim that the checkpoint is set up for the purpose of checking driver's licenses, then anything goes. In its haste to legalize checkpoints, the CCA managed to avert its eyes when evidence was presented that demonstrated the stated purpose of the checkpoint was a sham.

However, Judge Meyers, in his dissent, noted that the explanation of the stop given by the police officers seemed a little bit shady considering a K-9 unit was on hand:

The checkpoint in this case included a K-9 unit. So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers' licenses and insurance, then the deputies did not need drug-sniffing dogs. This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based upon the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was to "uncover evidence of ordinary criminal wrongdoing," in contravention of the Fourth Amendment.

Local law enforcement has just been given a blueprint by the CCA on how to run a sobriety checkpoint that will pass muster in Austin. Don't be surprised to see local police setting up driver's license checkpoints on weekend nights near entertainment districts.

Oh, and if you argue a motion to suppress, always, always request that the court issued conclusions of law and findings of fact. If you don't you're setting yourself up for a fall before the CCA.

Presumed intoxicated

According to the Texas Court of Criminal Appeals, the state no longer has a need to prove a "temporal link" between a driver's intoxication and his driving through direct evidence. It is enough to present circumstantial evidence that will allow a jury to make the necessary inference.

In Scillitani v. State, 297 SW3d  498 (Tex.App.--Houston [14th Dist.] 2009, rev'd in Scillitani v. State, No. PD 0069-10, June 30, 2010), the appellate court reversed a DWI conviction out of Fort Bend County on the grounds that there was no direct evidence to support the state's contention that the defendant was operating a motor vehicle while intoxicated. In Scillitani, a trooper came across a single car accident and found Mr. Scillitani, who admitted to driving, at the scene. The trooper administered roadside coordination exercises and decided that Mr. Scillitani was intoxicated. The trooper's opinion was bolstered when a preliminary breath test showed the driver to have an alcohol concentration in excess of the legal limit. The state did not present any evidence, however, to show when Mr. Scillitani drove the vehicle or how much time elapsed between the accident and the time the officer arrived.

The appellate court noted that:

[a]lthough this evidence supports a finding that appellant was intoxicated at the accident scene upon Trooper Hackney's arrival, neither this evidence nor any evidence introduced at trial constitutes independent evidence of (1) how recently the vehicle was driven or (2) how much time elapsed between the accident and Trooper Hackney's arrival. 

Mr. Scillitani's victory was short-lived, however, as the Court of Criminal Appeals held in Kuciemba v. State, 310 SW3d 460 (Tex.Crim.App. 2010), that "[b]eing intoxicated at the scene of an accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident, and the inference of intoxication is even stronger when the accident is a one-car collision with an inanimate object."

In his dissent, Judge Lawrence Myers notes that the evidence cited by the Court in determining that the evidence was sufficient to link Mr. Kuciemba's intoxication to his driving, was sufficient only in showing that Mr. Kuciemba was not driving his car in a safe manner. He pointed out that the state never offered any evidence to establish the time of the accident nor the time gap between the accident and the arrival of the officer.

The problem with the Court's decision is they are asking a jury to presume that if a motorist is intoxicated at the scene of a one-car accident then it stands to reason the motorist was intoxicated while driving his car - when the only presumption that a juror is able to make is that the defendant is innocent. The Court's logic also fails to take into account that a driver could still be in the absorption phase when the accident occurred or that the driver could have imbibed the spirits after the accident.

In its rush to overturn a case that might make it harder for the state to convict a motorist of driving while intoxicated, the Court neglected to note that the officer could have worked his way out of a jam by noting whether the engine was warm or by asking Mr. Kuciemba when the accident occurred. The duty of the Court is to ensure that the rights of the citizenry are protected, not bailing out the cops.

Judge Killer rebuked

At long last the saga of Judge Killer seems to be coming to an end with the State Commission on Judicial Conduct's release of its Findings, Conclusions and Order of Public Warning against the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller.

In condemnation of the conduct described above that violated Article 5, section 1-(a)(6)A of the Texas Constitution  and Canon 3B(8) of the Texas Code of Judicial Conduct, it is the Commission's decision to issue a PUBLIC WARNING to the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, Austin, Travis County, Texas.

Pursuant to the authority contained in Article 5, section 1-a(8) of the Texas Constitution, it is ordered that Judge Keller's conduct described above be made the subject of a PUBLIC WARNING by the State Commission on Judicial Conduct. -- Commission's Findings, Conclusions and Order of Public Warning, Inquiry Concerning Honorable Sharon Keller, Judge No. 96

For those of you who haven't followed the proceedings, Chief Judge Keller told David Dow and the Texas Defenders Service that the Court would not remain open for late filings on the day that Michael Richard was scheduled to die at the hands of the state. Mr. Richard's attorneys scrambled that day to prepare a writ of habeas corpus challenging the constitutionality of the lethal drug cocktail used by Texas to kill inmates as the US Supreme Court granted a writ of certiorari in a case out of Kentucky alleging that the drugs used by Kentucky (the same drugs used by Texas) masked the suffering of the inmate while he lay dying.

At a hearing presided over by Judge David Berchelmann, Jr. of San Antonio, Judge Keller tried to throw the blame squarely on Mr. Dow's shoulders for not filing his pleadings on time. Judge Berchelmann fell for the misdirection and spent entirely too much time raking Mr. Dow and his organization over the coals when the focus of the inquiry was Judge Keller's conduct.

The State Commission saw past the smokescreen and found that Judge Keller violated the rules of the court regarding execution day protocols, knowing that her actions would allow the state to kill Mr. Richard. The commission then issued a public warning rebuking Judge Keller for her actions -- the first time a sitting judge on the Court of Criminal Appeals has received such a warning. (Click here for the Commission's Findings.)

Judge Keller has said that she will appeal the Commission's finding and warning. Nice to see the judge taking advantage of a protocol that she denied to a man scheduled to die.

No experience needed

Earlier this week State District Judge Susan Criss from down in Galveston posted a comment on her Facebook page that 40 of the 111 Chief Justices of the U.S. Supreme Court had no experience as judges. Then Rick Casey of the The Houston Chronicle wrote about the lack of judicial experience for judges on the two highest courts in the state. According to Mr. Casey, five of the judges on the Texas Court of Criminal Appeals had no judicial experience prior to being elected (I don't know if using Judge Killer as an example is a good idea, however). He also pointed out that the Chief Justice of the Texas Supreme Court, Wallace Jefferson never wore a judge's robe before he was appointed to the court.

Senate Republicans are aiming to make an issue of President Obama's selection to fill the seat of Justice John Paul Stevens having no prior judicial experience. Elena Kragan is the Solicitor General for the United States and argues before the Supreme Court on issues involving the federal government. Funny that Republicans didn't have a problem with President George W. Bush's selection of Harriet Miers, former White House Counsel, to fill a seat on the bench. But, then, consistency has never been a priority of the two major parties.

Neither former Chief Justice Earl Warren nor Chief Justice William Rehnquist, appointed by Presidents Eisenhower and Nixon respectively, had any prior judicial experience before taking their seats on the high court.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. -- U.S. Constitution, Art. III, Sec. 1

The U.S. Supreme Court was created by Article III of the United States Constitution. Interestingly enough, there is no requirement that a nominee for the Court even be a lawyer.

A reprieve for Judge Killer

The special master appointed to hear the State Commission on Judicial Conduct's charges against Judge Sharon Keller of the Court of Criminal Appeals has found that the judge's conduct "[did] not warrant removal from office or further reprimand beyond the public humiliation she has surely suffered."

Of course, while Judge Keller may have suffered public humiliation, at least she is still alive to feel the brunt of it. Michael Richard is dead due, in part, to her actions.

Judge David Berchelmann, Jr., of San Antonio, found that Judge Keller's actions on the day of Mr. Richard's execution did not preven his attorneys, the Texas Defender Service, from filing the necessary documents as there were other avenues for filing available. Judge Berchelmann said TDS bore most of the responsibility for the events of the day.

Judge Berchelmann's findings will now go to the Commission who will decide whether to dismiss the complaint, reprimand Judge Keller or ask the Texas Supreme Court to remove her from office.

Read Judge Berchelmann's findings here.

Update: Stay of execution granted in Hood case

The Texas Court of Criminal Appeals has stayed the scheduled execution of Charles Dean Hood. The Court's decision was not based on the deposition testimony confirming the sexual relationship between retired Judge Verla Sue Holland and former Collin County DA Tom O'Connell, but, instead, on the question of whether or not the jury was given a proper instruction regarding mitigation during the sentencing phase.

Grits for Breakfast has a transcript of an e-mail sent from Mr. Hood's lawyers detailing the admissions of Ms. Holland and Mr. O'Connell. Those admissions were the first confirmation from the two former lovebirds that anything out of sorts had been going on during Mr. Hood's trial. Both admitted to the affair and to their failure to inform Mr. Hood, or his attorneys, about the affair.

Justice, Collin County style

In 1990, Charles Dean Hood was convicted for the murders of Ronald Williamson, his boss, and Tracie Wallace, Williamson's girlfriend. Hood's bloody fingerprints were found at the crime scene (on garbage bags and documents) and the two victims had been shot at close range.

It appeared that the trial would be a slam dunk conviction for Collin County DA Tom O'Connell who decided to try the case himself. Actually it would be more than a slam dunk.

The presiding judge of the 296th Judicial District Court, Verla Sue Holland, was involved in a long-running romantic relationship with O'Connell. Yet, despite the clear conflict of interest, neither disclosed their relationship to Mr. Hood or to his attorney, David Haynes.

Although rumors about the relationship ran rampant through the Collin County courthouse, Mr. Haynes didn't think the issue could be raised at trial absent proof.

Mr. Hood was scheduled to be murdered by the State of Texas on June 17, 2008 but prison officials aborted it when it became clear they could not carry out the sentence prior to midnight.

After securing an affidavit from a former prosecutor in the Collin County DA's Office acknowledging the relationship between O'Connell and Holland, Hood's attorneys filed an appeal alleging the affair prevented Mr. Hood from receiving a fair and impartial trial before Judge Holland.

The State of Texas stayed the execution and rescheduled it for September 10, 2008. At the same time, Mr. Hood's attorneys sought civil relief in the 199th Judicial District Court of Collin County. His attorneys asked Judge Robert Dry to determine whether the conduct of Holland and O'Connell during Hood's trial was ethical.

Judge Dry scheduled a hearing on the civil matter for September 12, 2008 -- too late to afford any relief to Mr. Hood.

To date, Judge Holland has refused to comment on the allegations she was sleeping with the prosecutor during Hood's trial. She said it would be "unethical" for her to comment on a pending case, even though the Texas Constitution says that the judiciary must avoid any appearance of impropriety and must hold itself to exacting standards in order to avoid a loss of public confidence.

The Collin County DA's office has also refused to comment on the allegations.

Judge Holland left her bench in Collin County and served on the Court of Criminal Appeals in the mid-1990's. Since then, Court of Criminal Appeals has refused to force Holland to answer any questions regarding the affair.

Although it was not Judge Holland who convicted (and condemned) Mr. Hood - that was the job of 12 citizens of Collin County, she ruled on motions, objections and proposed charges during the course of the trial.

To that end, the 500-member Association of Professional Responsibility Lawyers and dozens of legal ethicists have called Hood's conviction into question and 22 former federal and state judges from Texas and the rest of the country have called on Governor Perry to grant Mr. Hood a reprieve.

Charles Dean Hood may very well be guilty of the murders but there is this little notion of due process that the courts should (at the very least) pay attention to every now and then. This is one of those times.