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Richard A. Anderson makes part of his living arguing cases before the Texas Court of Criminal Appeals, a nine-member panel of elected judges that is the state's supreme court over criminal cases. In the hallowed halls of the judiciary, deference to those in the black robes often plays out in the unattractive practice of butt kissing. But Anderson is doing some butt kicking, boldly lecturing the high court in a motion he filed on behalf of his death-row client, murderer George Alarick Jones, that asks the court to reconsider an earlier decision against him.
The motion reads as if the Dallas attorney had a death wish of his own. Anderson admonishes the court with strong words, the kind a judge might use to scold a lawyer who plays fast and loose with the rules of procedure and law in the courtroom.
"The Court has sanctioned conduct that strikes at the very heart of the basic American right to a fair and impartial jury..." Anderson writes. "The Court needs to hang out a sign on the Courthouse steps proclaiming, "Abandon all hope Ye who enter here.'
"...There is a fine line between whining and being genuinely concerned for the soul of a court and how the criminal justice system in Texas is perceived by the public, bench and bar, and individuals outside the state of Texas," he continues. While conceding that the motion is "long on polemic and short on legal authority," Anderson writes that "it is hard to be enthused with reiterating legal authority to a court that appears to have so little reverence for precedent...
"It is just unfair. Unfair. Unfair."
It may seem like whining, but Anderson is simply frustrated, as are scores of other criminal defense attorneys in Texas. They believe they no longer have a fair shot to win in front of the Court of Criminal Appeals.
"This current court treats precedent like a housewife treats a cockroach she finds crawling around when she turns on the lights at two in the morning," says Brian Wice, a flamboyant Houston criminal defense attorney and outspoken critic of the current court.
Wice and other lawyers say the court's majority is guilty of contorting law to achieve its desired result: upholding convictions no matter how badly a prosecutor or trial judge mishandles a case. Former judges on the court, as well as some of the current court's more reasonable minds, also express shock and chagrin at the majority's flouting of long-standing legal precedent.
"We've come down to a result-oriented mentality where the ends justify the means," says Charles Baird, who served eight years on the court before a 1998 election defeat. "The backbone of the criminal justice system is that everybody is treated fairly under the same rule of law. And this court is changing that."
In a particularly salty dissent on a case, one in which the court jettisoned 100 years of legal precedent, Judge Lawrence Meyers flogs his colleagues for ruling that the state no longer has to prove that charges against a defendant fall within the statute of limitations.
"The Court finds the State in a muck for having failed to file the [indictments] in a timely manner," Meyers writes. "And it would be a bitter pill to swallow if this Court were to be held responsible for the State's sloppy prosecution, resulting in the release of two co-defendants who most certainly committed the heinous crime for which they were convicted. So never mind that the State had five years to file the [indictments] but filed in the sixth year. And never mind precedent."
An exasperated Meyers concludes his dissent with a shrug of the shoulders. "Go figure," he writes.
A trio of judges -- Michael McCormick, Sharon Keller, and Stephen Mansfield -- has turned the court into a vacation resort for the prosecution, an abrupt and recent drift that has more to do with the judges' individual biases than it does any voter mandate.
From 1992 to 1999 the Court of Criminal Appeals went from all-Democratic to exclusively Republican. Candidates for the court cannot raise much money, and their campaigns wallow in the comparative underground of statewide races. No one argues that the vast majority of voters know only whether Court of Criminal Appeals candidates are Republican or Democrat -- and they know that only because it is divulged on the ballot. In a state where voters have gone from overwhelmingly favoring Democrats to overwhelmingly favoring Republicans (no Democrat has won a statewide election in Texas since 1994), the court also has turned.
Voter ignorance has led to an unintended consequence: court judges who admit their goal is to discard case law that they believe unfairly favors the defense. McCormick, Keller, and Mansfield claim they are the ones being faithful to the law and are simply correcting agenda-driven misdeeds of past judges who were biased against the state.
"I don't think it serves justice to reverse convictions for technical violations where guilt or innocence is clear and the person got a fair trial," Mansfield says. One person's technicality, though, is another person's constitutional right.
Mansfield is a leader of this current court. And that, in itself, is disturbing. On a court in which the judges seem to enjoy their relative anonymity, Mansfield is the best known. And it's not for doing anything good.
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