Longform

Dissed robes

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Instead of playing heretic, the former Democrat who switched parties in October 1997 now leads the majority of conformist judges that routinely sides with the state. Like his most loyal peons, Mansfield and Keller, he says the current majority has simply shifted a left-leaning court to the moderate center.

"Before, a lot of convictions were being reversed on fundamental grounds without even looking at the facts of the case," McCormick says. "What this court is saying is, look, we are not going to engage in a hypertechnical game of pleadings like they did back in the 13th and 14th centuries in England, where if a word was out of place, then you lost. We are going to look at what is being attacked in light of what transpired in the trial and what harm it caused the accused."

McCormick has gone from outcast to bell cow because of the court's unprecedented turnover. He is the only holdover from the 1992 court. Former Judge Charles Campbell, who lost to Mansfield in 1994, says the problem with the Court of Criminal Appeals -- and the court system in general -- isn't philosophy, but inexperience.

"Philosophy has never brought down a court," says Campbell, who had a reputation as a scholarly judge. "But one of the things that does erode confidence in a system is a lack of institutional memory and a lack of experience."

What Campbell is saying in a diplomatic way is that the court isn't as scholarly as it used to be. Meyers, the judge who doesn't mind straying from the majority, also chooses words carefully to give his assessment of the current court.

"I feel like some of the cases that we've done have not been intellectually honest," says Meyers. In 1992 he became the first Republican ever elected to the court. He disagrees with McCormick, Keller, and Mansfield that the previous court was agenda-driven in favor of the defense.

To seize control of the court, McCormick has had to ally with Mansfield, whom he calls a "very intelligent person," and Keller, who like Mansfield came to the court without judicial experience.

The three often are joined in the majority by Judge Sue Holland, whom criminal defense lawyers characterize as wanting between the ears, and first-year Judge Michael Keasler, a former Dallas County district court judge who is wet behind the ears. They also count on Judge Paul Womack, widely hailed as the court intellectual but one who cannot move beyond his bias as a former prosecutor.

It is Keller, however, who is McCormick's protégé. She worked eight years for the Dallas County District Attorney's Office before being elected in 1994. McCormick was executive director of the Texas District and County Attorneys Association before he was elected to the court in 1980.

As Keller worked in the appellate section of the district attorney's office, she grew unhappy with what she viewed as a defense-oriented agenda of the court. She says she saw the court adopt new rules and unfairly apply them retroactively to favor the defense. It struck her that the court's rulings had no sound basis in constitutional, statutory, or case law but rather reflected the individual biases of the judges. For those reasons, she opted to run in 1994.

Basically she faulted the court for doing exactly what criminal defense lawyers grouse she is doing now in favor of the state. The irony is not lost on her.

The difference is that "I'm right and they aren't," she says with a laugh. "We're getting into mainstream jurisprudence now. What Texas did before was the odd thing." To further the point, in defending his opinion in the Jones appeal, Mansfield argues that the ruling put Texas law in line with federal law and that in most other states.

Keller's campaign in 1994 left little doubt as to what she wanted to accomplish as a judge. An ad showed hands behind jail bars and proudly proclaimed that person wouldn't vote for Sharon Keller, but you could. Yet she says hers was not a pro-prosecutor agenda.

"I wanted to stop these free-floating decisions of the court that really had nothing to do with the law," she says.

Keller plans to run next year to succeed McCormick as presiding judge, a mostly administrative chief justice position. Another member of the court, former Dallas County District Court Judge Tom Price, plans to challenge Keller. Price, who gets criticized for spending most of his time in Dallas instead of Austin, did not respond to requests for an interview.

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Stuart Eskenazi