The Panetti execution

On Wednesday, Texas plans on executing a man named Scott Panetti. The underlying details of the capital murder in question have been delineated sufficiently previously, namely in an editorial I recently participated in for The Daily Texan, in which the editorial board not only argued for clemency in his case but for the abolition of the death penalty in general (something Texpatriate did last August). The basics are that Panetti, who murdered two people in the early 1990s, is severely mentally ill, to the extent that no reasonable medical professional could certify him as competent for execution under the standard set by the Supreme Court in the 2007 case of Panetti v. Quarterman.

And yet, perhaps unsurprisingly, Texas is soldiering on with the execution nonetheless. His attorneys, after reading about the tentative December 3rd execution date in the newspaper, quickly appealed up the ladder of the Texas appellate system. On Wednesday, the Court of Criminal Appeals (the highest criminal court in the state) ruled 5-4 against granting a stay of execution. The per curiam decision, however, did included the concurrence of the court’s lone ostensible Democrat, Judge Larry Meyers. As I noted in May, I’m not really a fan of Meyers, and there are plenty of Republicans on the court I like far more than him. They include Judge Elsa Alcaca, who wrote a blistering dissent, as well as Judge Tom Price, who wrote an individual opinion calling for the abolition of the death penalty.

Price, first elected in 1996, chose not to run for a fourth six-year term this year and will leave office in January. In his bombastic six page dissent, which you can find at this link, he explained in careful detail both his steadfast opposition to Panetti’s execution as well as to capital punishment altogether. One by one, Price dismantled the arguments for the death penalty, before chronicling his own personal journey. It is all eerily reminiscent of Justice Harry Blackmun’s big change of heart in the 1990s. Like Blackmun, Price will no longer “tinker with the machinery of death.” It’s a shame he won’t be on the court much longer, although it makes senses; no death penalty opponent could survive a statewide Republican primary.

Today, as the Texas Tribune reports, the Board of Pardons and Paroles voted unanimously to deny Panetti any type of commutation, clemency or reprieve. The only other state recourse would be one 30 day delay by Governor Rick Perry, which appears rather unlikely. Accordingly, Panetti’s lawyers have appealed the case to the US Supreme Court. Who knows what the Supreme Court will do, but the odds are placed squarely against Panetti in this instance.

This case, like most every other capital murder case, involves a totally reprehensible crime. Panetti brutally murdered two people. And while he is severely mentally ill, he is not so delusional that he literally does not understand the distinction between right and wrong. He understands, to some extent, that he erred in killing two innocent people.

All this is to say that I do not want him to spend any of his days as a free man. But the Supreme Court has held for many decades that a higher standard exists for capital punishment. And while I believe the barbaric punishment to be, in all cases, cruel and unusual, even tepid proponents should see that the execution of Panetti is wrong.

Advertisements

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.

In re Campbell

There is man named Robert Campbell on Texas’ death row, who is scheduled for execution this upcoming Monday. He was convicted of an especially heinous 1991 robbery-rape-murder, for which he was given Texas’ ultimate penalty: death. Campbell has argued a number of objections since that time, explaining in part why he was languished on death row nearly in a state of limbo for so long. Namely, he has contended that he received inadequate counsel at trial. Anecdotally, his new attorneys point to the fact that his original defender was from Conroe, not Houston (where his trial took place), and only provided rudimentary petitions and appeals, stuff that could basically just be copied off the internet.

However, while litigating this issue, another can of worms, so to speak, arose. Campbell’s IQ, according to a recent test, is 69, far below the threshold for mental retardation. In the 2002 case of Atkins v. Virginia, the US Supreme Court ruled that those who have been explicitly defined by their state of mentally retarded. The intellectual handicaps are to be treated like youth or any other mitigating factor, in that it does not serve as evidence of being unable to comprehend the difference between right and wrong, but serve as a rationale to not levy the full punishment. The problem with this is that States can define mental retardation any way they so choose. Enter Campbell: with an IQ of 69. The problem is that the State contends this is not tantamount to the needed intellectual handicap for clemency.

Click here to see what the Texas Court of Criminal Appeals ruled on this matter!

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!

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!

Lazy, Lazy, Lazy

When it comes to last minute Statewide filings, there were few big surprises besides Steve Stockman going up against John Cornyn, and Justice Larry Meyers becoming a Democrat, both of which I have previously covered. Indeed, the news I will focus on is the continued laziness and complacency of the Democrats, which in and of itself is not especially surprising. But more on that about two paragraphs down.

For the non-Judicial posts, Democrats were responsible enough this go-around to recruit candidates for all of the openings for the first time in six years (in 2010, we allowed Susan Combs to be re-elected without contest, and in 2012, we allowed Barry Smitherman to do the same). Except for the Agriculture Commissioner, Railroad Commissioner and Governor (Wendy Davis faces token opposition), all the other Democrats stood alone in their primaries. The obvious major exception is for the US Senate seat, which will feature three major candidates, David Alameel, Michael Fjetland and Maxey Scherr.

For the Judicial positions, a few qualified candidates also ran. Bill Moody, an El Paso District Judge who has previously run for the Supreme Court, will seek the Chief Justice’s office. The aforementioned Larry Meyers, who currently serves as a Justice on the Court of Criminal Appeals, will run for a spot on the Supreme Court. Gina Benavides, the Chief Justice of the 13th Court of Appeals (based in Corpus Christi), will run for yet another spot. Additionally, John Granberg, an attorney out of El Paso, will run for the Court of Criminal Appeals. These four candidates will be extraordinarily competent on the campaign trail and would make fine Supreme Court or Court of Criminal Appeals Justices.

But the Dems left three seats without candidates. Click here to read why that is inexcusable!

Justice Meyers switches parties

The Houston Chronicle reports that Justice Larry Meyers of the Court of Criminal Appeals has switched to the Democratic Party and will run on the Democrat slate for the Texas Supreme Court. Meyers, originally a Republican, first served on the 2nd Court of Appeals from 1989 to 1992. That year, he was elected to the Court of Criminal Appeals (and was re-elected 1998, 2004 and 2010).

Meyers, who comes from the court’s more moderate wing (4 members), has flirted with this possibility before. As Grits for Breakfast reminds us, he briefly ran against Sharon Keller in the 2012 Republican primary. He was also heavily lobbied to run the race as a Democrat, via The Dallas Morning News. Ultimately, neither of these fantasies for the anti-Keller crowd came to pass.

Today’s bombshell announcement came as Justice Meyers made no formal announcement. Instead, the news broke from a press release of the Texas Democratic Party, which briefly touted Justice Meyer’s record, with quotes from TDP Executive Director Will Hailer and TDP Chairman Gilberto Hinojosa–but not Meyers.

Click here to read more!