CCA expands cell phone rights

The Austin American-Statesman reports that the Court of Criminal Appeals, the State’s highest criminal court, has decided that warrantless searches of cell phones following arrests are in violation of both the Fourth Amendment to the US Constitution and Article I, Section 9 of the Texas Constitution. The court held 8-1 that the State (prosecution) has no justifiable reason to easily look through the phones, which the court held was closer aligned with the “papers” mentioned in the Fourth Amendment than the other property typically rummaged through following arrests.

In this particular case, a young man was arrested following causing a ruckus on a school bus, a fairly low level misdemeanor. After receiving a tip, a police officer (a different one from the arresting officer) learned that the defendant had allegedly taken an improper photograph of a classmate, which is a felony. Police searched his cell phone without his consent and without a warrant and found the photographs. This particularly crime comes with a maximum penalty of two years in prison, but the other implications of a felony conviction are far worse.

Click here to read the court’s reasoning!

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3 Open Seats on Court of Criminal Appeals

The Texas Tribune reports that all three seats up for election on the Texas Court of Criminal Appeals in 2014 –all Republican– will be open. The incumbents, Cathy Cochran, Tom Price and Paul Womack, are all opting to retire.

The judges, two of whom have served since the State first went unanimously Republican (1997) and one (Cochran) who has served since 2001, are not by any means the deans of the Court. Distinct from the Texas Supreme Court, the Court of Criminal Appeals has been remarkably consistent in its members of the years.

Only two members of the court, including Cochran, took office during Perry’s administration. Five were selected or elected during George W. Bush’s governorship, with two more taking office when Ann Richards was the Governor. This is remarkable, considering how long Perry has been Governor and how extensive his influence has been in just about every other part of the State’s bureaucracy.

The Court of Criminal Appeals is absolutely just as bad as any court comprised of 9 elected Texas Republicans would be (Sharon Keller, anyone?), but it could still be a lot worse. As the Tribune article reminds us, those same three Justices made up a bare majority that forbid the execution of a mentally ill man earlier this month, specifically the forced medication of a mentally ill man for the purposes of execution.

Given that Cochran, who took office in 2001, is the second most recent addition to the Court, the Tea Party holds minimal influence. All of this could change with the THREE open seats that the Court now has leading into the 2014 primaries. The Tribune article notes that eight people are eying running for these seats, but do not provide the names. I will have to do some research on this in the next day or two.

As I have said before, I have very little faith in the ability of Democrats to run candidates for these Statewide seats, ESPECIALLY the Statewide seats. I have been asked recently if this means I have a diminished faith in the leadership of the State party, and, simply put, that is not the case. I am still just as optimistic that Chairman Gilberto Hinojosa is making the inroads to turn the party around, but have always maintained that this is not the fault of leadership, but of the people themselves. There is a profound enthusiasm gap.

Both the Texas Supreme Court & the Court of Criminal Appeals saw three seats up for election last year. Democrats only contested two seats, one in each court. The candidates recruited, Michele Petty & Keith Hampton, respectively, were very good candidates who had everything going for their campaigns except that it was the wrong year for a Democrat in Texas. It was the other seats that are the most obvious examples of the gap, however. If the Texas GOP failed to recruit an establishment candidate for the same seats, you would see droves of conservatives vying for the post on ego alone. The same is missing from the Democratic Party in this State.

This enthusiasm gap is what, more than anything, makes life so frustrating for people like Hinojosa. There are only so many well-versed, liberal lawyers in this State with political talent. If they all turn down, there is not so much Party leadership may do. I noticed the same thing in Houston’s municipal politics, although the enthusiasm gap encompasses both sides of the aisle there.

Simply put, Democrats need to hit the ground running NOW to contest these seats. I sound like a broken record now when I say it, but 2014 is important not because we can win, but because we can never win until we put up a fight in an election. Because our record in 2012, 2010 & 2008 was more of a whimper. I truly hope that, when I find out who the 8 people already vying for the seat are, I find out at least one is a Democrat.