I had other interests in combing yesterday's orders issued by the CCA. However, down the hand down list was Ex parte Murphy, a death penalty case in front of the CCA on a subsequent (3rd) state writ of habeas corpus application. The CCA, in a non-published per curiam decision remanded the case back down to the Bowie County (Texarkana) District Court for an evidentiary hearing on Brady violations.
However the writ application had included another basis for relief the majority did not order be part of the evidentiary hearing to be held on remand: That the Texas death penalty scheme is no longer constitutional based on evolving standards of decency. Judge Alcala concurred in the result, but dissented on the denial of this last basis of relief. She ordered her concurrence and dissent published. This is the first time I can remember a member of the CCA giving solid, well thought out reasons why a full evidentiary record should be made enabling a merits based decision squarely confronting the issue of the constitutionality of the Texas death penalty scheme.
Judge Alcala takes on the whole of that scheme. First, Judge Alcala gives a scathing, yet accurate account of how easily Capital Murder can be indicted in Texas. Her point is that far from the narrow, highly unusual category of offense for which only two punishments are proper, death or life without parole, Capital Murder can be committed in hundreds of different ways in Texas.
The capital-murder statute provides for around one hundred different ways that a person can be convicted of capital murder. The list of ways in which a person may commit capital murder is twice as long when one considers that a defendant may be convicted not only as a principal actor, but also as a party by, for example, aiding or attempting to aid another person to commit the offense. And the list is thrice as long when one considers that a defendant may be convicted of capital murder even if he lacked any intent to commit that offense but was part of a conspiracy to commit a felony under certain circumstances. (citations omitted).Then Judge Alcala gets specific. Amongst the highlights? First, her position that Murphy presented sufficient evidence to allow a facial constitutional challenge to the Texas scheme:
Applicant argues that the Supreme Court’s previous holdings permitting the death penalty have been contingent on societal acceptance of that punishment, and he asserts that this acceptance has since changed. Presenting recent statistics demonstrating the significant decline in the use of the death penalty in the United States, applicant suggests that it is time for this Court to reconsider whether society still considers this penalty an acceptable form of punishment. I conclude that applicant has presented adequate facts showing recent societal disapproval of the death penalty that require further development in the habeas court.Judge Alcala then supports this assertion with evidence presented in the writ application. She also makes the the case for an "as applied" constitutional challenge - specific to Murphy. Judge Alacala also argues the record supports remand on the issue of race improperly influencing the death penalty. The coup de grace? Whether solitary confinement for a decade on death row constitutes an 8th Amendment violation.
Judge Alcala ends her her opinion this way:
At this juncture, I do not decide the ultimate merits of applicant’s arguments that theThe remaining question is why she chose this case to launch her broadside. Ex parte Murphy is being remanded - it is not a final judgment. Can Murphy appeal the denial of this third ground to the Supreme Court of the United States (SCOTUS) and follow the path she recently blazed in Moore v. Texas? I do not know. However, although Moore was appealed from the CCA to SCOTUS on state habeas review, it was an appeal from a final denial in the state writ proceeding. This is not the case in Ex parte Murphy. Further, even if appealable, SCOTUS would seem disinclined to review a state writ claim piecemeal.
death penalty is unconstitutional, though it should be evident from my numerous opinions on this subject that, in my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today. Rather than refuse to afford applicant the opportunity to factually develop his complaints as this Court does today, I would instead permit applicant to make an evidentiary record of his assertions and to have the habeas court make findings of fact and conclusions of law. I, therefore, respectfully dissent in part to the Court’s order that refuses to remand applicant’s third claim.
It could be Judge Alcala felt the writ application was so well developed that she had to act. The lawyers representing Murphy, it should be noted are big law firm lawyers from the Washington D.C. office of Hogan/Lovells. Congratulations to them for what must have been a throughly briefed, and equally well supported Art. 11.071 writ application.
What is significant is that a Judge on the State's highest court of criminal appeals is shining a light on fatal deficiencies of a scheme that is supposed to insulate everyone but the worst of the worst from the ultimate penalty.
AND she tweeted about it.