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 We feel, somewhat strongly, that it is an outdated and barbaric procedure, applied arbitrarily and capriciously.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.

Texpatriate’s Questions for David Newell

Editorial note: This is the third 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>.


David Newell, Repubican candidate for the Court of Criminal Appeals, Place 9

Texpatriate: What is your name?
DN: David Newell

T: What office are you seeking?
DN: Court of Criminal Appeals, Judge, Place 9

T: Please list all the elected or appointed POLITICAL (including all Judicial) offices you have previously held, and for what years you held them.
DN: While I have over sixteen years of experience in the area of criminal appeals, this would be my first political office.

T: What is your political party?
DN: 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?
DN: As a criminal appellate practitioner I would love to single out particular cases that I either agree or disagree with. But as a judicial candidate, I cannot single out a ruling that might disagree with because it could suggest potential bias or an inability to follow binding precedent on my part to do so. Such an expression could result in my inability to participate as a judge in a case where that precedent is at issue. Regardless of whether I agree or disagree with a particular result reached by the Court of Criminal Appeals, I would uphold that precedent unless there were significant reasons presented in an appropriate case to reconsider that holding.

T: What is a contentious issue that you believe the Court of Criminal Appeals will face in the near future? Why is it important?
DN: I believe the Court will have to resolve whether advances in forensic science that undermine past scientific opinions rendered honestly under the generally accepted science of the time require a new criminal trial or a finding of actual innocence. There is an inherent tension between science that is inherently adaptable to new information and a legal system based upon precedent that strives to establish certainty over time. The importance of the issue is obvious as this type of evidence can often form a significant part of the prosecution’s case, and the use of such evidence seems to increase exponentially.

T: Why you, as opposed to your opponents?
DN: I believe that my skill and experience in criminal appellate law makes me the best suited to do the job on the Court of Criminal Appeals. Over my sixteen-year career, I have written numerous appeals on death penalty cases and death penalty writs. I have appeared as both the petitioner and the respondent before the Court of Criminal Appeals on multiple occasions. As often as I have appeared before the Court of Criminal Appeals, I have appeared many more times before intermediate courts of appeal. I have briefed legal issues before the United States Supreme Court, which adopted my reasoning to uphold the decision of the Court of Criminal Appeals. I am Board Certified in both Criminal Law and Criminal Appellate Law. I have written numerous articles in The Texas Prosecutor on the significant decisions by the United States Supreme Court and the Court of Criminal Appeals. I have been presenting the Court of Criminal Appeals Case Law Update almost continuously for the State Bar of Texas at their Annual Advance Criminal Law Course since 2007. Consequently, I am very familiar not only with this Court’s precedent, but the emerging trends in its decisions. And I am well-respected by both sides of the criminal appellate bar. I am not running for the position, I’m running for the job, and I think my background and experience demonstrates that I am the best person to start doing that job on day one.

T: What role do you think a Judge of the Court of Criminal Appeals should have individually? What role do you think the Court of Criminal Appeals should have as a whole?
DN: First and foremost, a judge on the Court of Criminal Appeals should, in his or her individual capacity, fairly, accurately, and impartially decide the law. When drafting an opinion for the Court, the individual judge should work to incorporate the views of the other members of the Court in a clear and concise fashion so that practitioners and judges are properly guided on how to handle particular legal issues. When conferencing with other members of the Court, a judge should always be open to different points of view so that all of the Court’s written opinions are well-formed. The Courts constitutional role is to act as a check on legislative and executive overreach through impartial interpretation of the laws duly passed by the representatives of the citizens.

T: What are your thoughts on the partisan election of Judges?
DN: I support electing judges in partisan contests. The goal of having judges remain truly independent of the electoral process is certainly laudable, but in practice this goal is impossible to achieve. My experience having to analyze holdings from the many fractured opinions in a particular case before the United States Supreme Court has emphasized to me that pure appointment of judges can actually lead to more fractured and ideological opinions that can provide less guidance for parties, practitioners, and judges. Moreover, we essentially have a retention election in practice due to the nature of political appointments. Many qualified candidates choose to seek a judicial appointment rather than enter a political contest for an open seat with the knowledge that an incumbent has an advantage in any primary or general election. But partisan elections simply provide more transparency to the process and require at least some method by which voters can make a reasonable decision regarding a judge’s philosophy based upon party affiliation in the absence of more thorough research. It is not a perfect system, but is the best available option.

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?
DN: As with the question regarding particular cases I agree or disagree with, I cannot discuss particular legal issues that are of personal importance because they might suggest a lack of impartiality on my part should that issue come before me as a judge. What I can say is that I have always felt that is important to make sure lawyers and judges are accurately informed on the prevailing law regardless of the issue. To that end, I have written and lectured extensively on criminal law topics to police officers, lawyers, and judges. While I worked in Fort Bend County, I not only volunteered to teach at the Gus George Law Enforcement Academy on topics such as search and seizure, confessions, criminal procedure, and constitutional law, I also set up an in-house continuing legal education system to make sure new prosecutors were aware of law surrounding criminal prosecution. In our private lives, my wife and I have donated our time, talents, and treasure to our church, Southminster Presbyterian, as well community organizations such as the East Fort Bend Human Needs Ministry, the Houston Food Bank, the Literacy Council of Fort Bend County, and the Fort Bend Junior Service League to name a few. In that sense, we both believe it is important to live our lives in service to others, and those are ways we have acted on that belief. But perhaps the most important issue to me is being present for my two sons, Peter and Jacob. Having been raised by a military father, I have always tried to be available for my sons, to help them with school and extracurricular activities. I’ve coached my younger son in Little League (despite my limited skill) and helped my older son train for a triathlon. While these may not be the important issues contemplated in this question, I hope that my answers provide some insight into who I am and what is important to me on a personal level.

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 David Newell

Editorial note: This is the twenty-second 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.


David Newell, candidate in the Republican primary for Court of Criminal Appeals Place 9

Texpatriate: What is your name?
DN: David Newell

Click here to read the full interview!

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!