In the past week I've run across two stories about the top judges on Texas's two highest courts--one made me feel hopeful that things might get better and the other reminded me of the sort of legacy that any progress has to overcome. The hopeful story came from the Chief Justice of the Texas Supreme Court saying that we need to reconsider our system of electing judges in Texas. The distressing one came out of the Court of Criminal Appeals, related to the execution of a prisoner back in 2007.
But first, a word about the Texas court system--it has its quirks. Unlike the federal system where the US Supreme Court reviews all cases, whether they are criminal or civil, the Texas system is bifurcated with criminal appeals going up to the Court of Criminal Appeals and the civil cases going to the Texas Supreme Court. The other big one is that we elect our judges. Neither of these points are all that unique but you need to know that going forward.
When I was in law school, the Court of Criminal Appeals came to town, sitting for a session in our auditorium--I don't recall what the case was but I remember being struck by something as I looked at the slate of judges. All of them were former prosecutors. In a law and order kind of state like Texas, I guess it's kind of natural that folks would elect tough-sounding judges to the highest criminal court but it bothered me no end to have no diversity of opinion on this court. One of the areas of law that is often examined in criminal cases are procedural questions, you know, the ones that get spun as murderers getting off because the arresting officer forgot to Mirandize them. That's a rather extreme way to look at it but there are procedural protections put in place to protect our rights, rights like our freedom from unreasonable searches and seizure. When you have a court that's packed full of prosecutors, you don't have anyone who naturally comes from the perspective that we need to push and prod at procedure to make sure it serves to protect the accused's rights. It doesn't mean they can't protect those rights, it just means the judges will probably have a natural tendency to side with the prosecutors.
This is one reason I think the bifurcated system doesn't serve us all that well--if there was a mix of prosecutorial types and judges with more business or other experience sitting, there would be a little more diversity of opinion and more free-ranging debate when questions of procedure and the rights of the accused come up before the court.
Okay, that was a major digression but it was designed to set the stage for what the Court of Criminal Appeals looks like. What about the Supreme Court? Does it give the average Texan a sense of confidence that justice is blind and isn't bought and sold? Considering the amount of money that gets thrown around in the Supreme Court elections, I'd say that a lot of folks have serious questions about the even-handedness of our Texas Supreme Court. According to a Texans for Public Justice Report called Courtroom Contributors Stain Supreme Court Campaigns:
(Texans for Public Justice also published a report on appellate judges back in 2003, Lowering the Bar: Lawyers Keep Texas Appeals Judges on Retainer)
So, for those of you who aren't privvy to the fun comings and goings of the Texas legal system, that should get you up to speed on the general feel of things down here--there's plenty of fishiness that calls objectivity into question. Now, on to the stories du jour.
The positive story out of the Supreme Court came a few days ago when the Chief Justice made his State of the Judiciary speech. According to the story in the Houston Chronicle, Jefferson: Change Judicial Selection System:
In his "State of the Judiciary" speech to the Legislature, Jefferson said he supports a system that some other states have in which judges are appointed based on merit then held accountable with elections to decide whether they get to remain in office.
Texas has been electing judges since 1876 and is one of only seven states that holds partisan judicial elections, he said. There are campaign contribution limits for judicial races, but statewide judicial candidates like Jefferson still raise large sums of money to get elected.
Jefferson said he shares retired U.S. Supreme Court Justice Sandra Day O'Connor's concern about the "corrosive influence" of money on judge elections.
I like that--the head of our Texas Supreme Court sees the problems inherent in our election system and recognizes that public trust in the Court has suffered recently. This coincides with a case out of West Virginia before the US Supreme Court in which the influence of campaign donations on judicial decision-making is being debated. You can get all the information you're likely to ever want on the case at Caperton v. Massey at the Brennan Center for Justice; here's a quick look at the case:
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court—more than 60% of the total amount spent to support Justice Benjamin's campaign—while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict.
According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the Petitioners, "The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.
Things aren't pretty in Texas when it comes to electing judges, but with the Caperton case before the US Supreme Court and a Chief Justice of the Texas Supreme Court sounding the alarm on public confidence in the judiciary, the time would seem to be ripe for positive changes.
The ugly news comes out of the Court of Criminal Appeals, but it also has a postive side to it. Back in 2007, Presiding Judge Sharon Keller refused to keep her office open in order to consider a prisoner's appeal in light of the US Supreme Court's decision to review lethal injection as a constitutional form of execution. Here's the story as presented in a New York Times editorial, Investigating Judge Keller:
On Sept. 25, 2007, lawyers for Michael Richard were at work on a motion to stay their client’s execution. Earlier that day, the United States Supreme Court announced that it would consider the constitutionality of lethal injection. The lawyers were seeking to have Mr. Richard’s execution, which was to be by lethal injection, put off until the Supreme Court issued its ruling.
Where's the silver lining? It's not much of a lining but The Lege is considering investigating the situation as a precursor to impeaching the judge over this failure of justice. Now, of course, this is the Texas Lege and there's no guarantee that the impeachment investigation will actually go forward. But at least Rep. Burnam has filed the resolution. That's a start, Texas Legislator Moves to Impeach Judge Keller:
There are no guarantees in either story that we'll see progress in the Texas courts but at least the potential is there. When it comes to civil cases that often pit large corporations against consumers and the little guy, we must have a high degree of confidence that justice is not for sale and that even when the legal teams competing in the courtroom aren't equal, at least we know that the venue is fair. Even more importantly, we have to know that when men and women are executed by the State of Texas in our names that every available defense has been exhausted and that within the rules of procedure and the dictates of fairness, the door to the courtroom is open to all.
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