Saturday, January 30, 2016

Saving Stanley

On Wednesday, January 27, 2016 the Court of Criminal Appeals (CCA), in a 6-3 decision reversed the capital murder conviction of Stanley Lamar Griffin. The CCA found the evidence sufficient only to convict the lesser offense of murder and remanded the case back to Brazos County district court for a new punishment trial.

I represented Stanley Griffin at his capital murder trial. This post, however, comments only upon the CCA opinion. I have no special insight because I represented Stanley at trial. Most of what is written here could be written by anyone who has read the majority opinion and the dissent. 

The dissent is where I focus. 

The dissent was written by Judge Kevin Yeary. He was joined by Presiding Judge Keller and Judge Meyers. The dissent runs 57 pages, almost 6 times longer than the 10 page majority opinion. The dissent deals with all points of error advanced in the direct appeal. This a curious thing. Of those 57 pages, a full 38 pages, more than 2/3 of the dissenting opinion, deal not with the issue on which the majority reversed Stanley's capital murder conviction, but instead on mental retardation evidence introduced in the punishment phase of the trial. 

Mental retardation (MR) - intellectual disability is the proper clinical term - was heavily litigated at Stanley's trial. Anyone wishing to know how heavily need only read the dissent's parsing of the MR testimony. All this is because, for the uninitiated, The Supreme Court of the United States (SCOTUS) has determined the MR are ineligible for the death penalty. It is called an Atkins claim, after the SCOTUS decision deciding it.

Importantly, the dissent spends time analyzing Texas' capital murder contribution to the adaptive behavior prong of a clinical definition of MR - the so called Briseno factors. The following begins the dissent's Briseno factors analysis:
'There are other evidentiary factors which fact-finders in the criminal trial context
might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder [citing Briseno]' Cunningham [one defense MR expert] and Proctor [State MR expert] both testified that these other factors are not part of the clinical diagnosis of mental retardation within the professional scientific community but that they may be considered by the fact finder in the criminal trial context. 
I loathe these "other" factors appended onto clinically vetted adaptive behavior domains used to diagnosis intellectual disability. Other bloggers on Texas criminal justice have plowed the ground better than I. What I can say is I live with intellectual disability, and not just during my time with Stanley. I think about it every time I look at my youngest son. 

When Judge Yeary began writing, did he think it to be the majority opinion? Is this why it addresses each of the major points raised in Stanley's direct appeal? Or was it written in the hope that on a Motion for Rehearing 2 of the CCA judges signing on to the majority decision can be swung and it will end up the majority opinion? Why else would the dissent be written the way it was? Everything written after the first two lines of page 15 of the dissent is dicta, not necessary to address the basis of the reversal in the majority opinion. 

The cynic in me reads all the pages in the dissent dedicated to mental retardation and thinks how the CCA saw Stanley's case in the long term. In other words, collateral habeas appeal. The State's own intellectual functioning testing placed Stanley in the bottom 2% of the general population. Could the CCA have feared this? Combined this with the role the Briseno factors played in the non-clinical MR evidence could have presented a perfect storm for a grant by SCOTUS of certiorari on the Briseno factors. Were there fears SCOTUS would scuttle the Briseno factors in adaptive behavior analysis for Atkins claims the way SCOTUS scuttled Florida's treatment of IQ scores for Atkins claims in Hall v. Florida?

This is a speculative stretch, but if such a future would have unfolded, a tsunami of subsequent habeas claims based on improper reliance on Briseno factors by Texas trial and habeas courts would follow. Every Atkins claim would be subject to argument that it should be re-litigated based on previous improper reliance on Brsieno. If so, by saving Stanley the CCA also saved Briseno.

The cynic would say the CCA thought it better to reverse Stanley's case on the narrower grounds of an improperly charged capital murder than risking the future dismantling of the entirety of the post-Atkins landscape in Texas.

It matters not to me how the CCA saved Stanley, just that he was.

Saturday, January 16, 2016

Getting High: Bail in Brazos County, TX

If you are arrested on a misdemeanor in Brazos County Texas, you will have a bail amount set that will be too high. The reasons are in the inefficiency of the current system used in our county. These inefficiencies result in inflated bail amounts, ultimately wasting county resources.

I will go further: If the information I am receiving is correct, these bail amounts may also jeopardize some misdemeanor prosecutions.

Bail is not a sexy topic, but it is a fundamental one. Misdemeanors include Class A and B crimes, most often Driving While Intoxicated (DWI), Possession of Marijuana (POM), Assault and Assault-Family Violence. If you are arrested in Brazos County for POM-Class B (Less than 2 oz) expect a minimum bail amount of $2000. If you have an out of town address, not unusual as this is a college town, the bail set will be $3000. If the offense is a Class A Assault or Assault Family Violence, the bail will be $4000. The same offense, with an out of town address? $5000.  

I wish I could provide a link to the bail schedule for Brazos County. I cannot. There is no published bond schedule I can find for Brazos County. I only know of the bail amounts set above anecdotally. If there is a schedule, I would love have one of our local Justice of the Peace let me know where it can be found. There seems to be some schedule, but access is akin to a secret fraternity handshake: It is only known only to the 4 judges in the brotherhood known as Brazos County Justices of the Peace.

But I digress. Compare these misdemeanor bail amounts in Brazos County to those in Harris County (Houston). These schedules are published on the Harris County District Clerk website
 Class: B, Standard Offense
1st Offense $500
2nd Offense $500, plus $500 for each prior misdemeanor conviction
plus $1,000 for each prior felony conviction
Not to exceed $5,000
Class: A, Standard Offense
 1st Offense $1,000
 2nd Offense $1,000, plus $500 for each prior misdemeanor
$1,000 plus $1,000 for each prior felony
not to exceed $5,000
Class: Family Violence or Threat of Violence
 1st Offense $1,500
 2nd Offense Plus $2,000 for each prior conviction for a
violent offense or threat of violence
Class: DWI
 First Offense $500
 Subsequent Offense $2,500 plus $1,000 for each prior conviction
not to exceed $5,000
Class: Any offense committed while on bond,
community supervision, intervention, or
Class: Any motion to adjudicate or revoke
community supervision. $5,000
This means if a TAMU student with a Houston address is arrested in Brazos County for POM less than 2 oz, their base bail amount is $3000. In contrast, in Harris County if someone with a College Station address is arrested for the same POM offense, their bail would be $500 (Of course, this person in Harris County would never be arrested in the first place, as they would be cited, released and qualify a pre-trial diversion program, but that is another topic already vented upon).

This makes no sense. An arrestee in Brazos County is receiving a bail amount up to 6 times the amount they would receive if arrested an hour's drive south in Houston.

It makes less sense when thinking it through. Remember what a bail is supposed to accomplish: Provide security to ensure later appearance by the arrestee for court proceedings. These TAMU students are invested in society, and always show up for court. Sticking them with $3000 in bail penalizes them for a offense not proven, makes it less likely that they will post a cash bond that they will get back at the end of the case, and increases the possibility they will seek a tax payer provided court appointed lawyer.

My next post will detail the process of setting bail in Brazos County, the inefficiencies involved, and thoughts on reform.

At some point, DWI bonds amounts will also be discussed.   

Saturday, January 9, 2016

Goodbye, Spindly

His nickname was Spindly, and as nicknames go, it suited him. I came to know James Scott "Spindly" Wilson late in his eventful life, helping our mutual friend and attorney Philip Banks prosecute a personal injury claim on his behalf. The best part of the experience was coming to know Scott.

Growing up in the 1950's and 60's, especially in Bryan, Texas, must have been the cultural equivalent of the Planet Mars crashing down in the middle of it's downtown. The Pill. Vietnam. The Draft. This transcendent time was the world in which Scott and Phil grew into young men. Keeping your life between the ditches when you could be involuntarily shipped off to a war ravaged rice paddy half a world away tends to mess with your head.

For Scott it unfortunately led to addiction.

Scott's story, however, is not one of dissipation, it is one of redemption. His nickname may have been apt description of his physical stature, but in no way described him. The man was fearless. I saw this in the dogged pursuit of the litigation he honored me with being a part of.

I also heard it in the stories Phil told. Phil Banks is a raconteur of the first order. My favorite about Scott came while we prepped for trial. In Phil's yarn he tells of he and Scott eating in some long forgotten Mexican food restaurant in Bryan as teenagers. Seated across the restaurant was the Texas A&M offensive line. The leader of the group, as Phil tells it, was being obnoxious and loud. Scott, with Phil shuddering, got up, walked across the restaurant an told this very large man-child to  keep it down. Words ensued, but by Phil's reckoning, the football team backed down.

How could you not go to the mattresses for a guy like that?

His fearlessness helped Scott through recovery. Scott was well read, articulate and smart. When Phil posted about Scott's demise on his Facebook page, Micki Baudoin, a local probation officer and friend of Phil, Scott (and mine) posted:

Phil and I received a nice verdict for Scott. We were in the midst of collecting the verdict from an insurance company that has continued, wrongfully, in my opinion, to withhold paying the judgement when Scott passed yesterday, Friday January 8, 2016.

That insurance company's day of reckoning is coming. Scott "Spindly" Wilson fought the good fight to the end. We shall too.