Tuesday, September 27, 2016

UPDATED WITH CORRECTION: If The State Wins, It Loses: John Thuesen Edition

UPDATED WITH CORRECTION: I have tried in the almost two years this blog has been active to be accurate. When I am not, it requires correction. It has been brought to my attention that the CCA raised the issue of what I referred to as the "unrecusal" in my original blog post on their own motion. To the extent the original post contends the Brazos County DA's office laid behind the log on the issue, they did not.

ORIGINAL POST: On September 21, 2016 the Court of Criminal Appeals (CCA) remanded the latest Brazos County Death Penalty post conviction fiasco, Ex parte John Thuesen for additional fact findings. Based on my reading of the CCA order, no matter how the current issue plays out, the result is a longer, more expensive process that if the State of Texas wins, it loses.

Thuesen was convicted and sentenced to die back in 2010 for the brutal killing of a woman and her brother in their College Station home. On post conviction state habeas appeal (post conviction proceedings) the State Office of Capital Writs (OCW) pressed Ineffective Assistance of Counsel (IAC) claims against Thuesen's trial counsel. These claims centered on alleged failure to properly develop and present Post Traumatic Stress Disorder (PTSD) mitigation evidence related to Thuesen's military service at the punishment stage of his trial.

After finding an evidentiary hearing on the IAC claims was necessary, the Trial Judge took a voluntary recusal. Read the above linked order if curious about why. The Presiding Judge of the Second Administrative Judicial Region (Administrative Judge) then assigned a Visiting Judge to the case. The Trial Judge later changed his mind, deciding to "un-recuse" himself. The State of Texas, after initially opposing the un-recusal, reversed field, sending the following email to all interested parties, including the Administrative Judge:
The State of Texas no longer has any objections relating to [Trial Judge] presiding
over the John Thuesen writ. Based on further research and contact with a
number of experts in the area of federal writs, the statements and assurances
made by the Office of Capital Writs in the telephone hearing yesterday,
March 17, 2014, are sufficient to alleviate our concerns about their motives
for having you preside. With those issues resolved, our original desire to
have you preside can now be realized without any apprehension of future
legal ramifications.
The problem? According to the State, the Administrative Judge never took action to vacate the appointment of the Visiting Judge. Of course the State never said a word about this until the trial judge made findings on the post conviction hearing siding with Thuesen. Then the State said "never mind" and claimed error about the Trial Judge un-recusing himself despite agreeing to allow him to continue to preside and not bringing up this issue with either the Trial Judge or Administrative Judge.

Now, after more than a year with the case, the CCA has decided kick the can back down the appellate ladder with the following observations and instructions:
The record before us includes no written order signed by [Administrative Judge], no
letter order issued by [the Administrative Judge] and placed among the papers of the cause, and further no oral order announced by [Administrative Judge] on the record in open court, which purports to remove [Visiting Judge] and reinstate [Trial Judge]. Therefore, we now order [Administrative Judge] to conduct a review of the filings, records, and transcripts of the proceedings in this habeas case to locate any record of an order rendered by [Administrative Judge] removing [Visiting Judge] and reinstating [Trial Judge], if any such order exists.
Translation? The CCA is playing for time. Lots and lots of time.

What is the endgame for the State of Texas? Assume they "win" and the CCA ultimately upholds their legal position? What then? Most likely, the post conviction proceedings will be remanded back to the trial court for a new evidentiary proceeding on the original grounds of IAC the OCW advanced. If that happens, the OCW will likely withdraw from representing Thuesen because it failed to have the Administrative Judge sign the un-recusal order - and the prejudice to Thuesen is obvious. They will likely not want to further add to potential IAC claims against them by continuing to represent Thuesen.

If so, new post conviction lawyers will need to be appointed. These new lawyers will need time to get up to speed, and decide if an amended post conviction state habeas writ alleging IAC claims against the OCW should be asserted at this stage of proceedings. Given the tenuous status of the Death Penalty in this country, they will be in no hurry. The Trial Judge also may throw up his hands and recuse himself, this time for good - just to avoid the appearance of impropriety. Either way it will likely further proceedings for, literally, years. Oh yeah, and the taxpayer pays additional freight if a private lawyer is appointed because the OCW can no longer represent Thuesen.

Additionally, even if the State wins on the merits and the CCA, after a new evidentiary hearing, decides trial counsel was not IAC, yet another issue is added to the future federal post conviction proceedings. More than six years have elapsed since Thuesen was sentenced to die. The best case is probably another decade before the first round of state and federal post conviction proceedings are exhausted.

This could have been avoided had the State brought up what it now says was error before the evidentiary hearing on the OCW's post conviction appeal. Like when they agreed to let the Trial Judge continue to preside over the post conviction proceedings. The State's strategy also throws two sitting District Judges under the bus - a Trial Judge they appear before daily and the Presiding Judge for the largest judicial region in Texas.

Like I said, even if the State wins, they lose.

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