Still Hiding Under the Covers

The briefs are in.  Now it's up to the Court of Criminal Appeals.

Recap:

Judge Kevin Fine, presiding over the capital case State of Texas v. John Edward Green, is attempting to hold a hearing to determine whether the statute setting forth procedures for Texas capital trials leads to a too-great likelihood that innocent people will be sentenced to die and then executed.  The state, in the person of Pat Lykos, Criminal District Attorney for Harris County (that's Houston) where Green faces trial, wants to stop the hearing.

It asked the Court of Criminal Appeals to issue a writ of mandamus preventing the hearing.  The CCA refused.  The hearing began, and Lykos ordered her people to "stand mute" except for saying that all the evidence was irrelevant and that they were standing mute.  Then Lykos asked the CCA to decide on its own that it should reconsider mandamus and stop the hearing.  (Asking the court to decide on its own to reconsider a prior decision is a bizarre legal fiction that they've cooked up in the Lone Star State.)  The CCA said, 

Hmmm, maybe.  Why don't y'all brief it for us?  Due December 22.

And so they did.  And they told Fine to stop the hearing.

Mark Bennett has the briefs, in fact all the legal documents in the case, up on Scribd.  You can find them here.  He also has a handy examination of Texas mandamus rules and cases.  Here's the basic rule, taken from State ex rel Healey v. McMeans.

[M]andamus relief is available only when the relator can establish two things: first, that no other adequate remedy at law is available; and second, that the act he seeks to compel is ministerial. An act is ministerial “when the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment.”

Bennett shows, clearly, that if the CCA follows its own precedents, and if it adheres to the principle defining mandamus and when it may properly issue, it will deny the state's motion and let the hearing resume.

If this were law school, that's what would happen.  If this were law school, that's what the briefs would be arguing about.  Need I point out that this isn't law school?  I thought there was no need.

In fact, if you read through all the main briefs, you'll find this extensive discussion of mandamus, which I'm reproducing in its entirety.

The mandamus or prohibition powers of this Court cannot, and should not, be employed to interfere with the 177th Court's quintessential exercise of its inherent responsibilities.  See White v. Reiter, 640 S.W.2d 586, 593-594 (Tex.Crim.App. 1982)("[i]t is . . . well settled that mandamus will not issue to compel a particular result in what is manifestly a discretionary decision").

That's it.

Instead, the state's briefs argue that the death penalty is constitutional (they come very close to arguing that the Constitution requires Texas to have a death penalty) and that therefore it is improper even to examine the question.  And they argue that Green isn't making his case properly.

Green's side of the argument, meanwhile, is that innocent people are sentenced to die, that some are actually executed, and that the kind of evidence the state wants to use against Green is the kind that leads to wrongful convictions and death sentences and executions.

As I said, this ain't law school.

As I've also said, I don't believe in the Law, that uppercase law-school model of reasoning where one puts forth carefully crafted arguments based on precedent and judges (or justices) coolly analyze, ratiocinate, and reach a decision based on the best reading of the case law and facts.  I suppose maybe it happens from time to time.  But mostly that's just bullshit.

Here's what happens in the tough cases.  Judges have their predilections.  They follow them.  Then they look for case law that they can point to and say

See, I'm just doing my job, following the precedent.

And if that requires misrepresenting the facts or the case law?  Hey, that's part of the job.  They're not really dishonest.  More like disingenuous.  And self-deluding.

OK, we can live with that because those of us in the trenches understand how it works.  We know that the point of legal argument isn't really to give a law school analysis.  It's to convince the judge to rule out way.  The legal stuff is to give the judge an excuse to do what we hope to have convinced the judge to do.

Which brings me back to Texas and the CCA and mandamus and, ultimately, Judge Kevin Fine and defendant John Edward Green.  Because the lawyers all know that the rule relating to mandamus will be an excuse offered for the decision.  It's not about whether mandamus is proper.  It's not.  It's about whether the CCA thinks the hearing is a dangerous enough idea that it should be shut down.

Dangerous?  A hearing?  How can it be dangerous?

Because then, you know, we might actually start to know.  

This whole escapade began, you'll recall, when Fine declared the Texas death penalty procedure statute unconstitutional because there was too great a likelihood of sentencing to die and then executing innocent people.  He took it back a few days later and scheduled the hearing to find out if it was true.  

From the state's point of view, that was worse.

I mean, the general ruling - that would never have stood up.  Just another bleeding heart judge carrying on.  (Texas has hundreds of them, you understand.)

Nothing new there.  Oh, sure, he thought the death penalty killed innocent people.  Fine didn't really need to have a hearing.  Nobody did.

In fact, the public knows.  The polling data makes that clear.  Innocents and the death penalty is like broken eggs and omelettes.  The only serious question is how often and do we care.  And that's just haggling over the price.

But a hearing?  Evidence?  Do that and the public might end up seeing the holes in the fabric, get  actual information and not just logical conclusion.  There's a difference between believing that the emperor has no clothes and actually seeing that his diddly-do is no bigger than a toothpick when he steps outside

It's that thing about the truth setting you free.  That part about knowledge being power.  That damned thing about executing not just innocent people in general but Todd Willingham and Claude Jones and maybe a couple of others we can give name to.

Among the briefs filed in the CCA was one signed by, among others, six men who were wrongfully convicted and sentenced to be killed.

• Kirk Bloodsworth
• Clarence Brandley
• Anthony Graves
• Ray Krone
• Randy Steidl
• Delbert Tibbs

Bennett concludes his analysis of Texas mandamus law with this.

Mandamus is reserved for cases in which someone will somehow be irreparably harmed if the writ does not issue. Unless having the public learn the truth of capital punishment somehow harms the State, Harris County District Attorney Pat “Transparency” Lykos’s petition for mandamus should fail.

What Lykos maybe understands, and what the CCA likely understands, and why there's actually something significant at stake here, is what we teach students in writing classes.  

Don't tell.  Show.  Make the reader see.

Because actual information really is different.  It's damned hard to put the genii back in the bottle.  You can overrule the judge after a hearing, but making the evidence go away is a lot harder.

So all across the country it's the same song. Don't test the DNA.  Don't consider the recantation.  Don't ask.  For Gods sake, don't learn.

The fear, and it's real, is that someone will rip off the covers.