Sunday, October 30, 2016


 Defined as an "idea or suggestion wildly unreasonable, illogical, or inappropriate," absurd used in a sentence aptly describes the alternatives to replace Judge Cheryl Johnson on the Texas Court of Criminal Appeals (CCA), Place 5.

A story from Peggy Fikac at the San Antonio Express-News gives the best insight I have read this cycle (thanks for the link, Grits for Breakfast) as it pertains to the CCA. The larger picture painted by the story is the seemingly endless debate on partisan election of judges to the courts of last resort in Texas, and whether the CCA and the Supreme Court of Texas should be merged. Our current situation is placed in stark relief by contrasting Judge Johnson's qualifications against the glimpse Ms. Fikac and The Express-News give into the two candidates vying to replace her.

First, the bio from the CCA website for Judge Johnson:
Judge Cheryl Johnson was elected to the Texas Court of Criminal Appeals on November 3, 1998.
Judge Johnson was born September 30, 1946. She received her high school diploma from Whetstone High School, Columbus, Ohio, in 1964. She earned her B.S. in Chemistry from Ohio State University, Columbus, Ohio, in 1968, her M.S. in Inorganic Crystallography from the University of Illinois, Urbana, Illinois, in 1970 and her J.D. with high distinction from The John Marshall Law School, Chicago, Illinois, in 1983. From 1983 to 1984, she clerked for Judge Sam Johnson of the United States Court of Appeals for the Fifth Circuit. She was in private solo practice in Austin, Texas, from 1984 until 1998.
Judge Johnson is board-certified as a specialist in criminal law and is licensed by the State of Texas, United States Court of Appeals for the Seventh Circuit and the United States District Court for the Western District of Texas.
Judge Johnson is currently a member of the State Bar of Texas and the College of the State Bar of Texas. She was formerly a member of the Texas Criminal Defense Attorneys Association and the Austin Criminal Defense Attorneys Association, where she served on the Board of Directors and as Treasurer from 1994 to 1997. She also served as Director of the Texas Association of Attorneys Board Certified in Criminal Law from 1996 to 1997. She has been actively involved in the community, serving on the Community Justice Council's Committee on Offenders with Mental Impairments, as a volunteer attorney for Volunteer Legal Services of Central Texas, and as a volunteer for Literacy Austin.
Judge Johnson is a member of the Berkeley United Methodist Church. She and her husband, Lt. Greg W. Lasley, Austin Police Department (retired), reside in Austin, Texas. 
Here is information from the Express-News story on the two candidates. First is the GOP primary winner, Scott ("No, I am not the Wisconsin governor") Walker:
Defense lawyer Scott Walker says sharing a name with Wisconsin’s nationally known governor helped his bid for the Texas Court of Criminal Appeals, but it was God’s guidance that pushed him over the line to secure the Republican nomination.
If elected, he will get his first judicial experience as a member of the Texas high court that has power over life and death in criminal cases.
'I believe strongly that God led me to run for this office. He has been behind me. I prayed about the election daily,' Walker said in an interview with the San Antonio Express-News. 'I really feel that I was unbelievably blessed in this election, and God has just done what he planned to do all along.'
Let me quickly say I do not begrudge anyone seeking spiritual guidance. It does cause pause to think about the source of legal decision making if Walker replaces Judge Johnson. So much so that I fervently pray we never have to confront our own Judge Roy Moore, the now suspended Alabama Supreme Court Chief Justice.

Yet Walker is the better alternative to the Democratic standard bearer, Betsy Johnson, whose seemingly sole qualification to replace Judge Cheryl Johnson is that she shares her last name.
[Betsy] Johnson also has no judicial experience — it’s not required for a seat on either of the state’s highest courts — and she was removed more than five years ago from Bexar County’s list of lawyers who can represent indigent defendants in felony cases. 
According to the presiding judge at the time, Johnson didn’t want to represent clients if they wanted to go to trial instead of entering a plea. 
As a result, Walker has reaped general-election endorsements from a number of newspapers. The Dallas Morning News called a vote for Johnson 'reckless' and said it has warmed to Walker’s background and approach.
Then I read in the Express-News story the comments of Judge Sid Harle, who had been by far the most qualified of the original candidates to run for Judge Johnson's post. Absurd was the only word that seemed to apply.
State District Judge Sid Harle of Bexar County — who lost a bid for the GOP nod for the Place 5 seat [to Walker]  — said he met Johnson after she was dropped from the appointment list for indigent defendants facing felony charges in 2011.
He said other criminal court judges pressed for the action. Since he was the presiding judge, she came to his office to dispute it.
'I hear this clomping outside my door and she comes storming into my office in, of course, combat boots,' Harle said.
He said he advised Johnson to work as second chair without pay in a couple of trials to prove to the judges she could try a case, but she refused with an expletive.
Johnson, who’s described as partial to unconventional attire such as the combat boots noted by Harle, couldn’t be reached for this report. 
I could be wrong about absurd being the only applicable word to describe this race. Perhaps another adjective often bandied about in an up ballot race this election year also would apply.


Tuesday, October 11, 2016

The Elephant in Our Echo Chamber

Much of what is written in this blog relates to the criminal justice system I live and work in daily. The other system I live in daily is that of my youngest child, Zane. He is 12 years old, non-verbal with cognitive and physical limitations. One of his legs is significantly shorter than the other, causing gait and fall issues. This is compounded by both seizures and the autistic compulsion to contort himself into awkward positions. He is also symptomatic of scoliosis.

I may be a lawyer, but I also wear the hat of small business owner. I have one full time employee and 2 part time employees. I am the sole source of medical insurance for Zane, my dependents and my full time employee. My medical insurer is Blue Cross Blue Shield of Texas (BCBS) and has been for 18 years.

Since Zane's birth in 2003, BCBS has hiked my insurance premium every year - often the maximum allowable under my plan. I will not bore with why I am effectively tied to BCBS, but I am.

Yet I am lucky. I have health insurance. This does not obscure the larger problem of which I write. This past Sunday the Houston Chronicle ran a story by Jenny Deam (warning: some links may be behind a pay wall). The lede to the story:
As Texas' largest insurer [BCBS] eliminated hundreds of thousands of coverage plans for some of the state's sickest patients and asked for double-digit rate increases last year, its Chicago-based nonprofit parent company rewarded 10 top executives with a combined $48 million in bonuses.
This post is not, necessarily, an attempt to bash executives with the BCBS parent company, Health Care Services Corporation (HCSC). There is more from the story by Ms. Deam that leads to my point further down.
When 2016 arrived, Blue Cross and Blue Shield of Texas, HCSC's second-largest division, raised rates 20 percent and eliminated 367,000 plans, including 88,000 in Houston, that gave in-network access to many of the state's top-tier hospitals and specialists. The company said the benefit had become 'unsustainable.' 
Now, with just weeks to go before enrollment opens for 2017, HCSC's five Blue Cross and Blue Shield companies have asked state regulators for another round of rate increases, some as high as 82 percent, for ACA [Affordable Care Act] individual plans.
HCSC is a non-profit corporation.

We have a health care affordability crisis in the United States. It is the elephant in our societal room. This is a public policy issue that must be argued about on the merits or it, along with other policy issues percolating without discussion or real resolution, will result in our driving ourselves off a societal cliff.

That's right. Affordable health care. In an presidential election year in which personalities are at the fore, the silence of debate - and policy proposals - is deafening. In the 2 presidential debates thus far held, health care has been asked about once with no substantive policy discussions about what can realistically threaten all but the most affluent with possible bankruptcy.

I count my blessings. Others are not as fortunate. From another story by Ms. Deam, dated June, 2016 in the Chronicle:
The boy and his dad sit in the glow of the nursery lamp, their shadows wide as they rock together in the big chair. Bedtime is coming. But first there is the machine. 
A switch is flipped, and the medical contraption roars to life with an insistent whine. It looks like a Shop-Vac whose ribbed hose snaps into a special vest slipped over footie pajamas. The power of the machine makes every inch of 11-month-old Jack Faught shake in the hope of loosening mucus in his airways.
I can relate to these folks and their daily experience.
Since last spring, first-time parents Austin and Kyra Faught have stumbled, fallen and risen again after learning their child has cystic fibrosis, a lifelong disease that damages the lungs and pancreas. Left untreated, it could kill their son. If poorly treated, his life could be shortened. Their vision of parenthood forever changed, they threw themselves into battle against his sickness. 
Here is their problem:
Three weeks ago, a new fight landed at their doorstep, one that came with just as many tears and sleepless nights, waged not with medicine but phone calls and fax machines. It was with their insurance company as they begged to let Jack stay at Texas Children's Hospital, home to Houston's only accredited cystic fibrosis center and the team of specialists who were helping to keep him alive. 
Their story is part of a larger one being played out across Houston and the nation as the insurance industry reacts to its changing landscape by moving customers into narrower plans. At a time when millions of lower-income Americans are enjoying insurance coverage, some for the first time, an untold number of middle-class families are discovering that the kind of health care they want and need is slipping from their grasp. 
On the final day of 2015, tens of thousands of Blue Cross Blue Shield of Texas health insurance customers, including the Faughts, saw previous plans expire. Those with serious illnesses had been fretting for weeks over what such a change would mean, especially as word seeped out that the city's top hospitals would no longer be covered. 
How about those who have special needs children and unable to afford health insurance? Sorry, they are SOL. From a September story in the  Dallas Morning News, with a link to a longer story in the Austin American-Statesman.
Texas can proceed with millions of dollars in cuts toward the state's Medicaid program that provides therapy to disabled children. The Texas Supreme Court announced Friday that it declined to review a lower court ruling that would have allowed the cuts to move forward, the Austin American-Statesman first reported.  
Last year, the [Texas] Legislature approved $350 million in Medicaid cuts, mostly toward therapy providers for disabled children. Opponents of the cuts warned that they would disrupt care for tens of thousands of disabled children, especially in rural areas of Texas.
I am not banging on the Supreme Court of Texas for their decision. That recourse to the courts was sought exposes the problem. The problem is at root one of the state legislature's making. This is a policy issue to be fought at either the state of federal level. That is part of the debate we ought to be having - should health care coverage even be a state level issue.

My father has been a practicing obstetrician in the Houston area from more than 50 years. He sometimes says he has delivered half of Houston's population since 1964 - and he is only half joking. He sees the problems from the health care provider standpoint as it has worsened over those years. I see it from the end user standpoint. He and I disagree remarkably about the policy solution, but we both understand it is crippling regardless of whether it is the consumer or the provider. We must engage.

And thank you Jenny Deam for doggedly persisting in your reporting. Journalists like Ms. Deam and the Chronicle are grappling with reduced resources and the ability to report on important issues such as this. It is another problem we as a community must confront.

Another elephant in our echo chamber.

Monday, October 10, 2016

UPDATED WITH SCHEDULED ORAL ARGUMENT Texas' Intellectual Disability Idiocy - Part III

UPDATED 10/22/2016: SCOTUS released the remainder of November and December oral argument schedule following their weekly Friday conference on October 22, 2016. Moore v. Texas has been scheduled for oral argument on Tuesday, November 29, 2016. It is the only case scheduled for argument that day.

ORIGINAL POST: This is the third in a series of posts on Moore v. Texas, currently pending before the United States Supreme Court (SCOTUS). The case presents a legal challenge to the Texas death penalty scheme - how Texas defines and analyzes what are called Atkins claims. Atkins claim proceedings determine whether an otherwise death penalty eligible defendant is intellectually disabled (ID) and therefore ineligible for the ultimate state punishment.

The legal issue before SCOTUS is the use of factors named after the case in which they first appeared, Ex parte Briseno. Moore and his supporters in SCOTUS (amici), the Association of Psychiatric Association (APA), and the American Association of Intellectual and Developmental Disabilities (AAIDD), argue these Briseno factors, and, more generally, the Texas Court of Criminal Appeals (CCA) approach in reviewing Atkins claims, violate SCOTUS's exclusion of the ID from the death penalty. In a nutshell, Moore, the AAIDD and the APA argue the CCA has so disregarded clinical definitions of ID that Texas has violated the prohibition of excluding the ID from the death penalty.

Most of what appears in this post requires some understanding about the clinical criteria for ID and a working knowledge of the primary legal issues in Moore. I would encourage a review of the first two posts here (Part I), and here (Part II). The legal importance is not just the immediate case. If SCOTUS finds Moore's arguments correct it could mean almost fifteen years of Atkins claim litigation in Texas will have to be redone.

Moore's Reply Brief (Reply Brief) to the State of Texas Merit's Brief (State's Brief) was filed on October 6, 2016. The Reply Brief hammers on three issues: First, Moore argues the Briseno factors, contrary to the State's assertions, are not optional in Texas; second, that the Briseno factors, and by extension, the CCA, improperly weigh a defendant's adaptive deficits against adaptive strengths in review of a trial court's ID determination; and third, that medical science does not require a strict causation relationship between intellectual deficits and adaptive behavior deficits. In other words, Moore, the APA and the AAIDD argue there can be more than one cause (called co-morbidity) to the adaptive deficits found to exist in an individual.

In my second post, I attempted to analyze the State's Brief, but deferred a discussion of the fact intensive evidentiary record cited until the Reply Brief was filed. Moore opted for a more concise discussion of the evidentiary record than the State Brief. Nonetheless, it was effective:
At age 13, Moore still lacked a basic understanding of the days of the week, the seasons of the year, and telling time. He spent his days at school often drawing pictures because he was unable to read, write, or keep up with lessons. As the trial court concluded—applying the medical community’s current diagnostic framework—Moore has significantly subaverage general intellectual functioning (as reflected in his numerous IQ test scores under 75, including one relied upon by the CCA); significant and related limitations in adaptive functioning (as evidenced by, inter alia, his abysmal school records and test scores; the fact that he failed first grade and received only social promotions every year thereafter; his withdrawn social behavior; his limited communication skills; and his score of 2.5 standard deviations below the mean on the State expert’s adaptive-behavior test); and all of these characteristics manifested during childhood. It was only by rejecting the medical community’s diagnostic framework, and instead analyzing [Moore's] intellectual-disability claim under its fundamentally flawed Briseno framework—in which the low end of the IQ range was erroneously dismissed, purported strengths were given primacy, the non-clinical Briseno factors were 'weigh[ed] heavily' and an insurmountable and clinically unsound causation requirement was imposed—that the CCA was able to conclude otherwise.
The Reply Brief's final broadside before concluding:
In sum, the CCA reviews Atkins claims to ensure relief is granted only to those individuals whom it perceives as having 'that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.' [citing Briseno] Its distorted (and often arbitrary) approach to analyzing claims of intellectual disability is irreconcilable with the medical community’s diagnostic framework. No other State prohibits consideration of the current diagnostic framework or interprets the three-prong definition of intellectual disability in a similar manner—nor does Texas itself in any context other than the death penalty. 
The briefing in this case is now finished and the case is ready to be set for oral argument. I expect that to be scheduled in spring, 2017.

Wednesday, October 5, 2016


10/11/2016 UPDATE: Oral Arguments were held on October 11, 2016 in Pena-Rodriguez v, Colorado. A transcript of the argument can be found here. Amy Howe from SCOTUSblog summarized the argument, and can be read here. Audio from the argument will be available Friday October 14, 2016 after the weekly SCOTUS conference. It can be listened to online here.

I could not help but smile a couple of times reading Howe's blog post and comparing it against the transcript. For example:
Some justices also appeared skeptical of the argument, made by both Colorado and the federal government, that attorneys can guard against racial bias infecting juror deliberations by asking potential jurors about it during the process of selecting the jury. Sotomayor, for example, suggested that the argument assumes that jurors would be truthful about their racial biases, while Ginsburg observed that many lawyers might not want to ask about racial biases because they don’t want to be responsible for putting the issue into jurors’ minds. When [Colorado Solicitor General] Yarger tried to reassure the court that things don’t actually work that way, Roberts countered, “How do you know that?” One of the problems here, Roberts indicated, is that asking about racial bias when screening potential jurors might alert other jurors who are biased that they should not reveal their biases.
"How do you know that?" Chief Justice Roberts asked the Colorado Solicitor General. "Based on my extensive experience picking juries" replied no Solicitor General, ever.

I only jest, sort of.

The truth is except for members of racial supremacy groups, jury panel members will not disclose racial bias in front of a room of strangers during jury selection. More likely, this kind of panel member has rationalized their racial bias, to have it later exposed during a heated deliberation when facts and jurors are exhausted and racial stereotyping rears its ugly head to fill the void.

If this happens, it is an affront to the administration of justice. Exposing race based deliberations and jury verdicts must be elevated over otherwise valid policy arguments shielding jury deliberations. Based on the arguments I believe both the swing votes of Justices Breyer and Kennedy are going with the liberal wing. If so, this will change post verdict practice in Texas.

ORIGINAL POST: Today, October 5, 2016, the Supreme Court of the United States hears oral arguments in Buck v. Davis, a death penalty case that has received much media attention. The media hook in Buck is the injection of race during his trial. Nevertheless, those waiting for extended oral arguments about the United States Constitution and race in criminal jury trials may be disappointed. The threshold legal issue in Buck actually turns on a rather technical procedural rule.

Return, if you will, to SCOTUS on Tuesday, October 11, 2016 for oral arguments about race, criminal jury trials and the Constitution. The case is Pena-Rodriguez v. Colorado and has some real world application to what happens in criminal courtrooms around the country.

Pena-Rodriguez was accused of what amounts to felony sexual assault after allegedly groping two teenage girls at a Colorado race track. At trial Pena-Rodriguez argued misidentification and presented an alibi defense. After a contentious deliberation, the jury sent a note to the trial judge that they were deadlocked. The judge sent a response with an instruction that in Texas is called an "Allen instruction," or, more descriptively, a "dynamite charge." Colorado must have a very similar instruction. The instruction is meant to light a fire under a jury, and it did. The jury eventually returned a verdict convicting Pena-Rodriguez on misdemeanor charges related to the allegations, but acquitted him of the felony charge.

Pena-Rodriguez was not satisfied with the felony acquittal and the misdemeanor convictions. His lawyers contacted jurors after trial. They found two jurors who said another jury member - "Juror H.C." - told the jury during deliberations that, from his experience in law enforcement, Pena-Rodriguez must be guilty “because he’s Mexican and Mexican men take whatever they want.” They told about four other racist statements, including one in which H.C. said the alibi witness, also Latino, was an “illegal,” who must be lying. Testimony showed this witness to be a lawful immigrant.

Pena-Rodriguez's filed a motion for new trial arguing Juror H.C.'s comments constituted juror misconduct. This motion was denied, and the Supreme Court of Colorado agreed. The reason? Like Texas (and most jurisdictions) Colorado has a rule that bars anything related to actual jury deliberations from use in post convictions proceedings. In other words, even if Juror H.C. said the awful, racist things attributed to him, it could not be be used to establish juror misconduct.

This rule barring evidence of juror misconduct is based on policy reasons. Jury verdicts need finality, and jurors should be protected from potential harassment from lawyers scouring about for something to complain about after trial. Jurors should also be able to take comfort during deliberations and after verdict from the fear of having to testify about their deliberations in open court. It promotes open and frank deliberations.

Pena-Rodriguez's counter argument is pretty simple: These policy reasons must yield to the Sixth Amendment of the Constitution promising every criminal defendant an impartial trial. The overt, racist statements attributed to Juror H.C. go to the heart of a criminal jury's sworn responsibility (every Texas criminal juror promises to "[A] true verdict render according to the law and the evidence, so help [them] God"). Juror H.C.'s statements go to the very essence of a juror's promise to decide a criminal defendant's fate based upon these two things.

SCOTUS has been pretty much immune from finding Constitutionally dimensioned exceptions to this rule rendering inadmissible statements made during jury deliberations. In the 1980's in an appeal from Florida (where else?) SCOTUS decided the rule barred post conviction evidence of jury misconduct concerning drug and alcohol parties during trial that led to juror hangover and sleeping during the taking of evidence. This was not enough to overcome the policy reasons behind the rule of inadmissibility. SCOTUS held that juror bias is best rooted out during the jury selection process. This argument has obvious shortcomings in real world criminal practice - especially in a racial bias context.

In another more recent case involving juror misconduct SCOTUS wrote “There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” If Pena-Rodriguez is that case, it could impact post conviction practice significantly - especially in death penalty or life with out possibility of parole settings.

So for those of you waiting for sweeping arguments about race, criminal trials and the Constitution? See you next week.