Texpatriate endorses for Court of Criminal Appeals

Last month, this board turned a few heads when we advocated for the abolition of the death penalty. We feel, somewhat strongly, that it is an outdated and barbaric procedure, applied arbitrarily and capriciously. That it is a blight to our state and the constitutional liberties it ostensibly protects. Most of all, we feel that it is just an excessively cruel practice to inflict in this day and age.

With all that said, we are faced with a strange choice when deciding who to endorse in the three races for the Court of Criminal Appeals. As the court of last resort in Texas for all criminal cases, the court has broad range over a variety of causes, but seldom do any receive more attention than capital punishment. Whereas other disputes must go through the intermediate appellate body, the Court of Appeals, the Court of Criminal Appeals (yes, this is confusing, the names are all very similar) is required by law to hear appeals on cases involving the death penalty. Most of the time, the court unfortunately serves as a rubber stamp for zealous prosecutors. In the past, they have even gone so far as to allow an execution to go forward despite reasonable evidence that the condemnation should be stayed.

Thus, we were happy to see three Justices of this court stand aside ahead of this election. All three seats up this year feature open races. In addition to the three Republicans, the Democrats pitifully managed to field one candidate. All four support the indefensible procedure of capital punishment. In addition to these candidates are three Libertarians and two Greens. But we are not convinced any of these fringe candidates hold the legal acumen necessary to sit as a Judge on this high court.

Left with these realities, we judged (pun intended) the candidates based on their experience and qualifications. Accordingly, notwithstanding our deep disagreement on invaluable policy, we endorse the three Republicans.

Court of Criminal Appeals, Place 3
One may wonder what the current indictment of Governor Rick Perry has to do with this race, but the two are actually quite interconnected. Bert Richardson, the Republican candidate for Place 3 on the Court of Criminal Appeals, is the senior Judge currently overseeing Perry’s two pending felony indictments. Oddly enough, Richardson’s involvement in that case has garnered him significantly more media attention than his current Statewide race.

As the Texas Tribune noted, observers on both sides of the political spectrum have described Richardson as a “thoughtful” and “fair” jurist. Prosecutors and defense attorneys alike have nothing but adulation for his style of Judging. Simply put, when he is on the bench, politics and ideology are checked at the door. A Criminal District Judge who represented Bexar County for ten years, Richardson knows all too well the deleterious affects of partisanship running roughshod over the judiciary. He was the victim of a partisan sweep himself when a less-qualified Democrat defeated him in 2008.

Richardson’s Democratic opponent, John Granberg, is also a capable attorney. And while his lack of experience in judicial office doesn’t necessary concern us, we simply think Richardson is better suited for the job. Given that the we disagree with both of them over our main policy priority, we will gladly defer to the candidate with the sterling qualifications and credentials. Still, when it comes to the death penalty, we have some hope that Richardson can serve as a voice of reason. He appears rather reasonable regarding upcoming issues, such as DNA testing and judicial interpretation of the Michael Morton Act.

All in all, we have every reason to believe that Richardson will serve as a honorable Judge on the Court of Criminal Appeals. Accordingly, this board endorses him for Place 3 of the Court.

Court of Criminal Appeals, Place 4
Earlier this month, the Court of Criminal struck down the State’s law against improper photography. In an unnecessarily expansive holding, the court ruled 8-1 to protect most forms of lecherous photography in public places as protected symbolic speech under the 1st Amendment. We disagree with the ruling not only because the intent could have been accomplished significantly narrower, but because it does not take under consideration the protection of some of society’s most vulnerable. Surely, there could be a better solution?

Oddly enough, the brouhaha that inevitably erupted regarding this ruling reminded us of the credentials of Kevin Yeary, the Republican candidate for the Court of Criminal Appeals, Place 4. In a long and illustrative career as a appellate prosecutor, Yeary was the driving force behind defending the Texas Telephone Harassment statute from a similar first amendment challenge. Although the Court of Appeals originally struck down the law, it was later reversed by the Court of Criminal Appeals. Although candidates like Yeary are often prevented by ethics rules from publicly rebuking decisions such as the Improper Photography one, we confidently feel that his unique perspective would have allowed him to see the case differently.

Yeary is a good lawyer, with an honorable resume as a prosecutor. We have some concerns that, like many others, his prosecutor’s cap would follow him too closely onto the bench. And we are obviously disappointed to see yet another vehement advocate for the death penalty. All this being said, Yeary has no Democratic opponent. His only opposition is in the form of unqualified, unknown third parties. Given these choices, we think that Yeary is a very easy choice.

Accordingly, this board endorses Kevin Yeary for the Court of Criminal Appeals, Place 4.

Court of Criminal Appeals, Place 9
David Newell, a longtime appellate prosecutor with the Harris County District Attorney’s office, is uniquely qualified against his opponents to look out against mismanagement and miscarriages of justice. Indeed, we think his impressive career would allow him to be a good judge on the high court. A down-to-earth, affable personality, we think Newell’s greatest asset may be the way he approaches serious endeavors such as his run for office. We have every reason to believe he’ll take the same attitude to the court if elected.

Obviously, we do have some misgivings about his candidacy. An emphatic defender of capital punishment, we sharply disagree. His website also contains an inappropriately lengthy section on his religious faith, juxtaposed immediately next to one on his “judicial philosophy.” In our society, where –as Thomas Jefferson once proscribed– there should be a wall erected between the church and the state, the occurrence is slightly troubling.

But Newell’s judicial philosophy and his history warrant support, especially in light of him lacking any serious competitors. Facing only token opposition, his endorsement is an easy one. But we have hope that Newell will make a good judge.

Accordingly, this board endorses David Newell for the Court of Criminal Appeals, Place 9.

The Texpatriate Editorial Board is comprised of Noah M. Horwitz & Olivia Arena of Austin, George Bailey of Boston, Luis Fayad of College Station and Andrew Scott Romo of New Orleans. Editorials represent a majority of the voting board.

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Texpatriate’s Questions for Bert Richardson

Editorial note: This is the eighteenth in our series of electronic interviews with candidates for Statewide and Harris County offices. We have sent questionnaires to every candidate on the ballot, given we could find a working email address. We have printed their answers verbatim as we receive them. If you are or work for such a candidate, and we did not send a questionnaire, please contact us <info@texpate.com>.

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Judge Bert Richardson, Republican candidate for the Court of Criminal Appeals, Place 3

Texpatriate: What is your name?
BR: Bert Richardson

T: What office are you seeking?
BR: Place 3, Texas Court of Criminal Appeals

T: Please list all the elected or appointed POLITICAL (including all Judicial) offices you have previously held, and for what years you held them.
BR: Judge of the 379th District Court, Bexar County, Texas.  1999-2008

T: What is your political party?
BR: Republican

T: What is a specific case in which you disagree with the incumbent’s ruling? What is a specific case in which you agree?
BR: N/A

T: What is a contentious issue that you believe the Court of Criminal Appeals will face in the near future? Why is it important?
BR: Although it would be inappropriate to classify any specific issue as contentious, I do believe there are important issues that the TCCA will have to consider in the coming years including ongoing issues raised in relation to DNA testing, scientific evidence in arson cases, interpreting the Michael Morton act and many others.

T: Why you, as opposed to your opponents?
BR: I am the only candidate for this position that is Board Certified in Criminal Law (less than 2% of lawyers are certified in this area).  The Court of Criminal Appeals has exclusive appellate jurisdiction over all death penalty cases.  I have significant experience in death penalty litigation as a prosecutor and judge both at the trial level and post conviction level. I also have significant appellate experience at the State and federal level. As an elected judge in Bexar County I was consistently ranked at the top of local Bar Polls for knowledge of the law, work ethic and judicial demeanor.  As a Senior Judge I receive a steady stream of judicial assignments for routine matters (both civil and criminal) and high profile cases across the State and have worked in over 40 counties in the last 5 years.   As a judge I have never had a trial verdict reversed by an appellate court.  I have taught law related classes at local colleges & St. Mary’s Law School for over 15 years.    

T: What role do you think a Judge of the Texas Court of Criminal Appeals should have individually?  What role do you think the Texas Court of Criminal Appeals should have as a whole?
BR: A: To have an open line of communication with the other judges on the Court regarding pending cases.  B: The Court should issue clear and concise opinions, so those practicing in the criminal justice arena understand how to deal with some of the more complicated and controversial issues in the trial courts.

T: What are your thoughts on the partisan election of Judges?
BR: After receiving almost every major endorsement (from newspapers, law enforcement groups and lawyers) and being ranked at the top of most bar polls, I was a “victim” of a partisan sweep as an elected judge, so I am of the opinion that there has to be a better way to select our judges.  However, the party in power is rarely motivated to change the system.  Since 2008 in Bexar County there have been “judicial sweeps” in each election.  In San Antonio the elections for judicial positions have been referred to by members of the media as a “Judicial Lottery.”  Even for this race at the State level, most average voters have no idea what the TCCA does, or the qualifications needed to do the job. I would be in favor of a different system in order to attract the most qualified candidates for the bench.

T: What are the three most important issues to you, and what is at least one thing you have done to address each of them?
BR: (A)(1). Significant changes in scientific evidence in many areas that have exonerated several wrongfully convicted defendants. The TCCA promulgates rules of evidence for criminal trials and those rules should address these changes and the admissibility of such evidence;   (A)(2). Online filing of briefs and records to that court.  Most appellate courts across the State have implemented this and I would work to do that at the TCCA;  (A)(3). Legislative changes in discovery rules, in light of the Michael Morton Act and exoneration.  One way to do that would be to educate judges on these changes and the obligation the State has to turn over specific information to the defense.  The TCCA administers funds that educate judges. (B)  I have presided over and submitted to the TCCA extensive Findings of Fact and Conclusions of Law in many of the areas in (A)(1), such as arson, DNA and mental retardation.

Texpatriate endorses in CCA primary

Contrary to common belief, there are actually two high courts in the State of Texas. The Texas Supreme Court, which we dealt with yesterday, and the Court of Criminal Appeals (CCA). The former court deals with all non-criminal matters, whereas the latter (as its name suggests) is the court of last resort for any criminal cases. Confusingly enough, both courts share the same intermediate Court of Appeals.

The criminal responsibilities of this court are twofold. First, the court is able to use discretionary review to hear secondary appeals in non-Capital criminal cases. In these appeals, as in any other, defendants may raise point of errors that allegedly prevented them from receiving a fair trial. Second, the court is bound by law to look at all Capital cases, looking for similar errors. Further, the Court may hear habeas corpus hearings that focus upon details not necessarily pertinent to the legal issues of the trial. All in all, this Court holds a very valuable role in protecting the integrity of Texas’ criminal justice system. At a time when there is growing skepticism over capital punishment and exoneration after exoneration due to new DNA evidence, we are faced with a watershed election to this high Court. Among the three seats up for election this year, all three Republican incumbents are retiring, setting up lively contests for their replacement in the Republican primary. Democrats only bothered to contest one seat.

Click here to read our endorsements!

Texpatriate’s Questions for Bert Richardson

Editorial note: This is the fourteenth in our series of electronic interviews with candidates in contested primaries at both the Statewide level and throughout Harris County. We have sent eight open-ended questions to each of the candidates. The following are verbatim copies of the questions sent out and the answers received.

Bert Richardson, candidate in the Republican primary for the Court of Criminal Appeals, place 3

Texpatriate: What is your name?
BR: Bert Richardson

T: What office are you running for?
BR: Place 3 Texas Court of Criminal Appeals

T: What is your profession/occupation?
BR: Senior Judge, Adjunct Law Professor St. Mary’s University Law

T: In just a few words, what does the office you are running for do and what are its responsibilities?
BR: It is the State’s high criminal court for all criminal cases.  It has 3 important duties: 1. Review all death penalty cases; 2. At its discretion, review cases ruled upon by other intermediate appellate courts and issue opinions on those lower court rulings; 3. It has the sole power at the State level to set aside wrongful convictions after hearings are conducted at the trial court (granting writs).

T: If you are running against an incumbent (primary or general), do you think the incumbent has failed? If so, why specifically?
BR: The incumbent is retiring.

T: What would be your three biggest priorities if elected?
BR: First, The TCCA promulgates rules of evidence for criminal trials .  Because of significant changes in scientific evidence (DNA) in many areas that have exonerated several wrongfully convicted defendants, those rules should address the changes and the admissibility of such evidence.  Second, the State and defense should be able to file briefs and records to that court online (e-filing).  Most appellate courts across the State have implemented this and I would work to do that at the TCCA.  Third, the TCCA administers funds that educate judges.   Judges should be educated on legislative changes in discovery rules and the obligation the State has to turn over evidence in light of the Michael Morton Act and exoneration. 

T: What distinguishes you from your opponent(s)? Why should people specifically vote for you?
BR: As an elected judge and Senior Judge over the last 14 years I have worked in 40+ counties across the State and handled almost every type of case the TCCA reviews.  Some of these cases have required significant writing and recommendations to the TCCA on how those cases should be resolved.

I believe I am the only candidate for this position that has a combination of significant death penalty and appellate experience as a practicing lawyer and judge and that is Board Certified in Criminal Law (less than 2% of lawyers are certified in this area).

I have taught law related classes at the local colleges and law school since the mid 90’s. I have the tried and presided over the types of cases the TCCA handles for most of my career.  In addition to my extensive trial experience as a State and Federal prosecutor, I have written over 50+ briefs in the State and federal systems.  As an elected judge in Bexar County I was consistently ranked at the top of local Bar Polls for knowledge of the law, work ethic and judicial demeanor.  As a Senior Judge I receive a steady stream of judicial assignments for routine matters (both civil and criminal) and I have been assigned several high profile cases across the State both at the trial level and post conviction level including 5 death penalty cases.  I have never had a trial verdict reversed by an appellate court. I have taught at the local colleges and law school for over 15 years and consistently receive high marks on all of my student evaluations.

T: What is the most important thing you have learned thus far in the campaign?
BR: That Texas is a big State and difficult to cover! It is difficult to raise funds for this race and most of that goes to travel expenses for campaigning.   Very few people are aware this court exists and even fewer understand what duties the judges have in what is one of two high courts in this State.  

Statewide Judicial update

A couple months ago, I noted that all three seats on the Court of Criminal Appeals up for election in 2014 would be open, as every pertinent incumbent would be retiring. Similarly, with the elevation of Justice Nathan Hecht to the role of Chief Justice, his seat will hold a special election in 2014, meaning four of the seats on the Supreme Court will be up for election. However, it appears at press time that they will all include incumbents.

All these Supreme Court slots have no other candidates besides the incumbents. The three Court of Criminal Appeals slots, however, each respectively have two candidates. All aforementioned candidates are Republicans, and all signs suggest that the Democrats will not even contest most of these seats, as they have typically done in the past.

First things first, Chief Justice Nathan Hecht, who was just recently appointed to the position by Governor Perry, will run for re-election for the Chief slot (Position #1). He is hitherto unopposed. Justices Jeffrey Boyd and Phil Johnson will also run for re-election for Positions 7 and 8, respectively. Justice Jeff Brown, a former Houston Appeals Court Judge who was recently appointed by Governor Perry to replace Hecht’s associate justice seat, will run for re-election to Position 6.

Click here to read about the candidates for the Court of Criminal Appeals!

Grand Jury convened against Perry

The Austin American-Statesman, as well as the Houston Chronicle (both behind those asinine paywalls), both report that in the ongoing legal action against Governor Perry.

A few weeks ago, Judge Richardson appointed a Special Prosecutor, later deemed to be Michael McCrum, against Governor Perry in the ongoing abuse of office and coercion investigation. As many will recall, Perry went all Nixonian in June after using a line-item veto to cut funding for the Travis County District Attorney’s Public Integrity Unit. This was done after the Travis County DA, Rosemary Lehmberg, was arrested for drunk driving. Lehmberg, for her part, pleaded guilty and served out her sentence–30 days in jail. However, this was not good enough for Perry, who demanded she resign (and therefore be replaced by a Perry appointment) or he threatened to cut funding to her office’s key Statewide function.

After making the cuts, an Austin group, Texans for Public Safety, filed suit against Perry for a number of corruption charges. The Public Integrity Unit, for its part, was mostly saved after the County itself decided to foot the bill.

This grand jury will be empaneled for three months, and will consider the charges against Rick Perry (as well as some against Rosemary Lehmberg). It may offer up an indictment to either of these representative.

Off the Kuff has more.

Special Prosecutor against Perry

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Paybacks are hell

The Dallas Morning News reports that a Special Prosecutor will be named to begin an investigation against the Governor for charges of coercion and abuse of office following his veto of funding for the Public Integrity Unit.

The astute will surely remember that Rosemary Lehmberg, the District Attorney of Travis County, was arrested earlier this year for Driving While Intoxicated. Lehmberg’s case, like all other misdemeanors, was handled by the County Attorney, so there was no conflict of interest. Additionally, Lehmberg pleaded guilty, spent 30 days in jail, and completed all pending action against with–together will a pledge she would not run for re-election in 2016. Most people thought that would be it.

The trouble with Lehmberg resigning would be that the Governor would appoint her replacement. The Travis County DA is also uniquely important, as it hosts the State’s Public Integrity Unit, investigating corrupt acts perpetuated by State officials.

This is why Perry came in, as he has a vested interest in appointing the next Travis County DA. Shedding crocodile tears over Lehmberg’s alleged alcoholism making her unfit for the job (the pot calling the kettle a drunk, in my humble opinion), Perry announced he would line-item veto the funding for the Public Integrity Unit in the State’s budget unless Lehmberg resigned.

As it turns out, Lehmberg didn’t resign and Perry ended up vetoing the funding. That is where the arguments began over Perry’s wrongdoing. This could be seen as coercion because Perry made a threat to Lehmberg and abuse of office because it would be Perry, for all intent and purposes, withdrawing money from a group that investigates wrongdoings by himself.

The trial will be heard in State District Court in Williamson County, however it will be presided over by Judge Bret Richardson, who was appointed to the case by the powers-to-be in Williamson County. The case would have originally been heard in Travis County, but officials there recused themselves. Richardson is a Republican.

The Special Prosecutor the Morning News speaks of, I assume, will have the power to start the discovery process of the case against Rick Perry. Let us hope he finds something. As the article goes on:

Judge Robert “Bert” Richardson said he expected to name someone early next week, at which time “an order will be prepared and filed with the court.”

[…]

Richardson will appoint an “attorney pro-tem,” which the criminal state statutes describe as a special prosecutor, except the lawyer is not under the auspices of an elected district attorney.

This trial will be quite the event to watch. In other related news, the Houston Chronicle reports that Judge Richardson will soon appoint an attorney to defend the State as well.