Wednesday, March 29, 2017

The CCA Is Taken to the Woodshed

The Supreme Court of the United States (SCOTUS) decided Moore v. Texas yesterday, March 28, 2017. Moore tested whether a state, by using their own definitional terms, could take themselves right out of having to follow a SCOTUS mandate. In this situation, it was a SCOTUS decision exempting the Intellectually Disabled (ID) from the Death Penalty.

Since 2002, the Texas Court of Criminal Appeals (CCA) has basically defined ID in a way different than the medical community. In a practical way, this has ensured defendants medically classified as ID were still eligible for the Death Penalty despite the SCOTUS prohibition. Yesterday, the CCA was taken to the woodshed by SCOTUS. The 5-3 opinion can be read here. Amy Howe, of has analysis here.

Many, more qualified commenters have, and will, break down the decision, but here are some takeaways you might not see elsewhere:

1. Ruth Bader Ginsburg wrote the majority opinion, not Anthony Kennedy. This area - ID - has been dominated by the swing vote Kennedy. Justice Kennedy wrote Hall v. Florida, in which SCOTUS smacked down a different definitional end run around the SCOTUS decision exempting ID from the death penalty. However, in both tone and smack down, Moore was the far more aggressive opinion, probably owing to RBG's authorship. The thing of it is Kennedy did not write separately, joining Ginsburg majority opinion. Justice Kennedy may be coming around to RBG and Justice Breyer's way of thinking about the Eighth Amendment being incompatible with Capital Punishment schemes.

2. The CCA did not help it's cause when it decided Petetan v. State on March 8, 2017. Presiding Judge Keller wrote the majority opinion. Petetan was on direct appeal from a death verdict from McClennan County. Citing and relying on the same bad law which was subject of the then pending Moore case in SCOTUS, the CCA upheld the verdict finding sufficient evidence that the defendant was not ID and therefore eligible for the Death Penalty. It was a particularly cheeky move by Keller and her cohorts on the CCA, and Judge Elsa Alcala called them out in her dissent:
I would defer resolution of this appeal until after the Supreme Court decides
Moore v. Texas, in which the issue there, as here, is whether Texas’s legal standard for determining intellectual disability violates the Eighth Amendment’s prohibition against the execution of intellectually disabled people.
Judge Alcala's position would seem to be a reasonable one, right?  Let's not waste time, money and expense deciding a case whose outcome may change based a pending case at a higher pay grade. The CCA instead plowed right ahead, and in an 8-1 decision upheld the verdict of death. SCOTUS pays attention to these things, I promise. RBG gave a judicial shout out to Judge Alcala's dissent in Moore from the CCA  - twice - in her majority opinion. I think it no coincidence Moore was decided less than 3 weeks after Petetan. Sometimes, I cannot figure what is going on inside the CCA chambers. What internal machinations and divisions would lead to the CCA thinking deciding Petetan before Moore was a good idea?

3. Judge Neil Gorsuch would not have made a difference had he been confirmed and voting with the minority of Chief Justice Roberts, and Justices Thomas and Alito. Gorsuch is not a cinch to vote with this wing on this issue. Anthony Kennedy is a mentor, and as I have mentioned, signs are that Kennedy has steadily moved left on the Death Penalty issue. Of course, not to be macabre about it, but the CCA and others of the opinion that categorical exemptions from the Death Penalty are bad idea under the Eighth Amendment may be waiting to see whether Ginsburg, Breyer and Kennedy survive the Trump Presidency.

4. What the heck is Texas going to do with 15 years of ID Death Penalty habeas decisions on the State and Federal level relying on bad law? Will they need to re-litigated? The answer: Probably. This could mean new state and federal habeas claims for literally hundreds of death row inmates.

5. Pennsylvania (I think) and at least one other state use similar work arounds defining ID for exemption for the Death Penalty as Texas. They better be taking a hard look at their current practice in this area.

As a small town, in the trench lawyer, I am pleased that SCOTUS has recognized the illogical and non-scientific approach taken by Texas in this area. It is something I feel like I have been flailing around about for almost a decade. More important, as the father of a conventionally diagnosed ID 13 year old, I am also happy the science won.

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