Tuesday, March 8, 2016

Rick Perry Just Did Criminal Defendants a Big Favor

Former Governor Rick Perry received an early birthday present week before last from the Texas Court of Criminal Appeals (CCA). The CCA gifted Governor Perry by effectively getting rid of the criminal case against him in the pretrial stage. This is virtually unheard of in the context which it occurred. Regardless of how you feel about he man Molly Ivins dubbed "Governor Goodhair," there are nuggets to be mined from the fractured opinions issued from the CCA.

This post focuses on the largest of those nuggets - the potential expansion of pre-trial appeal rights for criminal defendants with "as applied" constitutional attacks on their indictments.

First a little background.

A special prosecutor managed to coax a 2 count criminal indictment from a Travis County grand jury against Perry. Count 1 was for Abuse of Official Capacity, Count 2 was for Coercion of a Public Servant. Both counts arose from Perry attempts to defund the Travis County D.A.'s statewide Public Integrity Unit jurisdiction. Perry, among other attacks on the indictment, filed a pretrial writ of habeas corpus (HC) attacking the constitutionality (under separation of powers theory) of the Abuse of Official Capacity statute as it applied to him.

Eventually the trial court denied the HC, and despite some misgivings about the prosecution, the Austin Court of Appeals (COA) affirmed.

the COA's reasoning? Paraphrasing, the COA said: Even if you ARE a former Governor, our law says you cannot attack an indictment before trial by alleging it is unconstitutional as applied to you. We cannot change this longstanding interpretation of the Great Writ. Come back after trial when we can better assess with a complete evidentiary record your "as applied to me" constitutional attack on this admittedly sketchy prosecution.

The CCA disagreed.

In reversing the denial of the pretrial HC, the CCA, in my opinion, changed the law and left the door ajar for greater pre-trial HC appeals for criminal defendants. The ability to attack, pretrial, the formal charging instrument is huge. The issue boils down to one key point: Cognizability analysis, or, stated differently, the ability to take a pre-trial HC in the first place.

Cognizability was the only part of the Perry opinion upon which only a plurality of the CCA passed judgment. There was a 3/3/2 split. The plurality breakdown was as follows: 3 (Keller/Alcala/Yeary [lead opinion]); 3 (Newell/Keasler/Hervey [concurring in judgment]); 2 (Meyer/Johnson [dissenting]).

Importantly, Judge Richardson did not participate.

Judge Alcala wrote an important concurring opinion. More on this, it's importance, and Judge Alcala's possible tactical thinking later.

First Judge Keller's main opinion. Presiding Judge Keller has, in the past, been tolerant of interlocutory appeals, at least on the State side. Though in conservative corners this would bear the dreaded "judicial activism" label, most everyone was willing to give her a pass, in my opinion, because it has generally benefited the State. This time, however, it cuts to the benefit of a criminal defendant, albeit a GOP, conservative, ex-Governor.

Whatever. The fact is, in this context, Governor Perry was in the criminal dock.

Presiding Judge Keller set the table effectively on the "cognizabability" hurtle any pre-Perry criminal defendant desirous of a pretrial decision on a claim that, as applied to them, the criminal law upon which they are charged is unconstitutional.
Although we have said that as-applied challenges are not cognizable before trial, we allow certain types of claims to be raised by pretrial habeas because the rights underlying those claims would be effectively undermined if not vindicated before trial. Within this category of rights that  would be effectively undermined if not vindicated pretrial, we have, so far, recognized the constitutional protections involving double jeopardy and bail. Facial constitutional challenges, however, are cognizable on pretrial habeas regardless of whether the particular constitutional right at issue would be effectively undermined if not vindicated prior to trial. When we say that as-applied challenges are not cognizable pretrial, what we mean is that, unlike with facial challenges, the unconstitutionality of a statute as applied is not, in the abstract, a basis for invoking the pretrial writ. But, as will be discussed further below, certain types of as-applied claims may be raised by pretrial habeas because the particular constitutional right at issue in the as-applied challenge is the type that would be effectively undermined if not vindicated prior to trial. (emphasis in the original)(citations omitted).
Presiding Judge Keller then finds the issue of separation of powers is just that kind of constitutional issue that would be "effectively undermined if not vindicated prior to trial." You can read the reasons for yourself. The important thing is she found cogniziability existed.

Enter now, center stage, Judge Alcala's concurrence. It provided a guide and invitation to both practitioner and courts of appeal:
Given that our decisions in this area have been less than clear in providing a workable framework for determining the cognizability of matters in pretrial habeas corpus, the Court’s splintered resolution of the cognizability question in this case does little to clarify matters. I nonetheless support the approach taken by the lead opinion and would urge this Court to adopt that approach going forward as the governing framework for analyzing pretrial cognizability questions. (citations omitted)
                                                                *    *    *    *
More broadly, the lead opinion seeks to clarify that, in assessing whether an as-applied challenge is cognizable on pretrial habeas, courts should not engage in a subjective evaluation of whether review at that stage would be better or more efficient but rather must conduct an objective legal inquiry into whether pretrial review is necessary in order to protect “the applicant’s substantive rights,” or, stated differently, whether “the nature of the constitutional right at issue entitles [the defendant] to raise [his] claims by pretrial habeas corpus.” By indicating that it is the nature of the constitutional right at stake that drives the pretrial-cognizability inquiry, this principle-based approach adheres to the underlying purpose of the writ of habeas corpus. (citations omitted.)
If you are criminal defense attorney, this language is exciting. The appellate door is now, if not opened, not locked shut. We in the defense bar need to look for opportunities to argue what is "as applied" sauce for Governor Perry, is sauce for every criminal defendant within the context of pretrial HC. Are you paying attention Capital Defense bar?

The judicial activism of the lead opinion and the concurring opinions rankled Judge Meyers and Judge Johnson. First Judge Meyers' dissent, the most "liberal" of the CCA judges, sounding the clarion call of judicial restraint:
After reading the majority’s opinion, it seems clear to me that it has decided to employ any means necessary in order to vacate the two felony counts against Governor Rick Perry.The majority opinion has repealed more statutes and made more new law than Governor Perry did in the last session of the legislature when he tried to muscle out the elected Travis County District Attorney.
Judge Johnson's dissent was even more peevish:
 In no other appeal I have read during the seventeen years that I have served on this Court has appellant been called anything other than “appellant.” The constant references to “Governor Perry” could well be seen by the public as an inference that appellant’s position in life entitles him to special privileges and special treatment by this Court that others might be denied.
At least Judge Meyers signed off on his dissent with the obligatory "I respectfully dissent." Judge Johnson did not so do. She just signed off simply "I dissent." For those not familiar with the subtleties of appellate courts, this can be the judicial equivalent of extending a middle finger.

The CCA's current dynamics are important. Judge Johnson is in her last term. She is not running for re-election. Judge Meyers switched to the Democratic party in 2013 and ran unsuccessfully for the Texas Supreme Court. He will be on the ballot in the general election in November as an incumbent for his current seat on the CCA, but has faint chance given his party affiliation.

Neither dissenting Judge, therefore, has reason to think long term. They can afford to stand their principled ground. Judge Alcala is thinking long game. The votes were present (Keller, Newell, Keasler, Hervey) for reversing. By signing off on Judge Keller's lead opinion, she could write the concurrence she wrote, provide a road map for criminal defense lawyers and courts of appeals on the issue, while giving cover to Judges Meyer and Johnson to write their dissents.

Judge Alcala is a force to be reckoned with.


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