By Jeff Balke
By Ben DuBose
By Ben DuBose
By Sean Pendergast
By Sean Pendergast
By Calvin TerBeek
By Jeff Balke
By Jeff Balke
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," Anderson continues. While conceding that the motion is "long on polemic and short on legal authority 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 simply is frustrated like 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 attorneys 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.
Mansfield was a two-bit insurance company lawyer in Houston when he was elected to the court in 1994, despite lying during his campaign that he had substantial criminal-law experience and was a Texas native.
The State Bar of Texas slapped him with a reprimand for his dishonesty. Then, just when it seemed like Mansfield maybe wasn't the dolt his 1994 campaign exposed him to be, he was arrested last year for scalping University of Texas football tickets outside the stadium before a game. The state's Commission on Judicial Conduct reprimanded him. An Austin-based judge last month accepted his no-contest plea to trespassing, sentencing him to six months' probation, a $300 fine and 30 hours of community service. His criminal record will be wiped clean if he successfully completes his sentence.
Mansfield, a judge who has disrespected the law and lacked integrity, is a main suspect in writing legal opinions that critics argue disrespect the law and lack integrity. As Judge Meyers would say, go figure.
Forest J. Hall, a 22-year-old Parkland Memorial Hospital employee, returned to his car after shopping at Dallas's Red Bird Mall. There, he came upon 19-year-old George Alarick Jones, armed with a .38 caliber semiautomatic handgun.
Jones and accomplice Derrick Rodgers forced Hall into his car at gunpoint and robbed him. They drove him south of the city, to a remote area of Lancaster. As Hall lay face down in a roadside ditch, Jones fired two shots into the back of Hall's head. Going outside their usual practice of seeking life sentences in capital murder cases, Dallas County prosecutors went after the death penalty for Jones. They got it.
How the verdict and sentence were reached -- not whether Jones committed the April 1993 homicide -- was at issue in Jones's appeal, which attorney Anderson brought before the Court of Criminal Appeals. The Jones appeal illustrates the lengths to which Mansfield and his agenda-driven colleagues will go to uphold convictions.
At Jones's trial, the judge wrongly allowed prosecutors to exclude a prospective juror perceived as friendly to the defense, thus effectively giving the state a numbers advantage in jury selection. The Court of Criminal Appeals ruled 6-3 in September 1998 that the trial judge had made an error, but it found that the mistake had not prevented Jones from having an impartial jury and a fair trial -- an incongruous ruling considering that one holdout juror can be the only difference between a sentence of life or death for a defendant.
The court's opinion took advantage of a new rule of appellate procedure that the court adopted in 1997. The court has exploited the rule to make it next to impossible for an appellant to prove that a trial error warrants reversal of a conviction.
Prior to 1997 the state had to prove beyond a reasonable doubt that a trial error did not contribute to either conviction or punishment. That burden shifted with the new rule, which says the court must disregard an "error, defect, irregularity or variance" unless defendants can prove it affected their "substantial rights." The court has yet to rule in favor of a defendant under this new test, because in its mind essentially no right is substantial enough to warrant the reversal of a conviction.
The court even appears unwilling to reverse a conviction if a trial error has violated a defendant's constitutional rights. In the Jones case, the court followed a warped trail of legal reasoning to conclude that the trial error violated neither Jones's Sixth Amendment right to a fair and impartial jury nor his "substantial rights."
In his motion for the court to reconsider, Anderson says it comes as a "great surprise to both the casual observer and the seasoned legal veteran" that the court can "sit back and piously declare that the fundamental rights guaranteed in the constitution to a fair and impartial jury is not affected."
He then asks: "What could ever rise to the level of a 'substantial right' if not the improper exclusion of a qualified juror in a capital case?" The answer, based on the court's interpretations of the new rule, is nothing.
In his opinion, Mansfield writes that Jones is guaranteed the right to an impartial jury, but that the exclusion of a potentially defense-friendly juror does not mean he did not receive one. "A defendant has no right that any particular individual serve on the jury. The defendant's only substantial right is that the jurors who do serve be qualified."
Since Jones did not show that the jury he got was biased, he cannot argue he had an unfair jury, Mansfield reasons. Anderson points out in his motion, however, that Jones didn't realize during his 1995 trial that he would have to prove jury bias to win on appeal. That burden of proof became law only in the Jones opinion itself.
"[Jones's] trial counsel was obviously hopelessly inept because he played by the rules of the game as they existed at the time of the trial or clairvoyance-challenged because he could not predict that four years later the Court of Criminal Appeals would adopt entirely new rules," Anderson sarcastically writes. "To retroactively apply new rules when trial counsel had no choice but to play by the rules established at the time of the game violates our fundamental notions of fair play."
When criminal-defense attorneys talk about the breakdown of the Court of Criminal Appeals, they begin with the name Stephen Mansfield. The judge, elected in 1994 and seeking re-election next year, is his own worst enemy and thus an easy target. Not nearly as dumb as people like to make him out to be, Mansfield nevertheless is stranger than he likes to believe he is.
"I think generally I have led a very quiet, sedate life," he says from his office on the second floor of a State Capitol complex building. "I've always gone to work on time, always prided myself on doing an honest day's work for an honest day's pay."
With salt-and-pepper hair that looks like it is cut in an Austin Powers shag (really, it's just a bad haircut), Mansfield, 47, says he's writing a Tom Clancy-esque novel that combines the intrigue of particle-beam research and the suspense of massive hurricanes.
On the first day of this autumn's cold snap, Mansfield went to work wearing an oversize beige knit sweater with colorful geometric designs and no shirt beneath it. The wide-neck collar was stretched and slung to where it exposed one of his shoulders. He finished his look with faded jeans and running shoes.
His office decor gives little hint as to who he is, except for a barbell not far from the door. Mansfield, a self-proclaimed jock, enjoys lifting weights in his office while taking a break from the rigors of being a judge.
He says his favorite addictive drink is Pepsi and that he doesn't smoke. He's a competitive distance runner and rugby player. And he's a good cook.
Instead of hobnobbing at haughty private clubs during lunch, Mansfield can be found cooking a fresh fillet of salmon in the kitchen of the court offices, which earns him a few raised eyebrows from startled underlings. He owns a home in southwest Houston and rents half of a duplex in northwest Austin. This being his first job with a decent salary ($134,000 annually in pay and benefits), Mansfield says, he isn't used to being extravagant. His work output is impressive, among the tops in the volume of court opinions produced. He claims to use his law clerks less than most judges do in authoring opinions. As if he has to prove himself (and he does, constantly), he offers evidence that his opinions are his own work by pointing to a ream of notebook paper stacked high on a bookshelf. Mansfield writes his first drafts of opinions in longhand on the papers. "I'm a terrible typist," he says.
So why is Mansfield still considered a buffoon? It's a combination of the deceitful way he got here, his knack of getting himself in trouble and his reputation as an odd duck. He characterizes his past foibles as "a few minor screwups." The State Bar of Texas, the Commission for Judicial Conduct and the University of Texas police, among others, conclude the screwup is Mansfield himself.
Mansfield was an in-house lawyer for a Houston insurance company and had an antigovernment political bent when he decided in 1993 to run for the Court of Criminal Appeals. He says he was inspired to enter the race because of the court's decision to overturn the 1990 conviction of Houstonian Lionell Rodriguez for the murder of Tracy Gee during a carjacking. In a controversial 5-4 ruling, the court faithfully tracked rules to ensure juries are chosen at random. But to Mansfield, and to many other Texans, it appeared as if the Rodriguez conviction was reversed on a technicality and that the court was leaning too far in favor of defendants' rights.
Mansfield plunked down the $3,000 filing fee to run in the Republican primary. He had no party ties, no base of support and no name recognition. What he did have was a rusted-out Ford Festiva, which he drove around the state to visit courthouses, party activists and victims' rights advocates. He won in a primary in which Republican voters chose between two candidates they knew nothing about.
He continued his driving campaign, staying in cheap motels with his Pomeranian, Royal. They would appear together at speaking events. Mansfield said he drew some criticism for an "undignified" campaign. "And I just said, 'That's the way it is.' If someone doesn't vote for me because I campaign with a little dog, that's their problem."
Mansfield compares his effort to that of a 1996 Democratic Senate hopeful who gained notice for touring the state in his Nissan pickup truck. "I was Victor Morales before Victor Morales," says Mansfield, failing to recognize that voters actually took notice of Morales. In all, Mansfield spent about $7,000 on his campaign, some of which he spent on dog food for Royal during the race.
His Democratic opponent was incumbent Charles Campbell, who won every endorsement from legal groups and newspapers.
Mansfield's anonymity ended when it was reported before the election that he had lied about his experience. He claimed a legal background primarily in criminal defense when in fact it was almost entirely in insurance and pension law. He claimed to have written extensively on criminal and civil justice issues when in fact he had written guest editorials for a Houston suburban newspaper and articles for an insurance industry trade publication. He also listed his birthplace as Houston even though it was Brookline, Massachusetts.
After the Texas Lawyer newspaper caught him in that lie, he claimed he had spent years in Houston as a child, until the newspaper caught him in that lie, too.
Mansfield characterized himself during the campaign as a political novice -- until that was also revealed as a lie. He ran for Congress in New Hampshire in 1978 and 1980. And Mansfield ultimately would disclose that he paid a $100 fine for practicing law without a license in Florida in the mid-1980s. He didn't even get his birthplace and birth date right on a Harris County voter affidavit in 1990.
Ironically, the negative publicity may have helped Mansfield defeat Campbell. Voters at least recognized his name, even if they couldn't recall why. He rode to victory with other Republicans in George W. Bush's gubernatorial defeat of incumbent Ann Richards.
"The odds that voters know who they are voting for in Court of Criminal Appeals elections are akin to those of me winning a daytime Emmy," defense attorney Wice says. "You want proof? I have two words: Steve Mansfield."
Less than a month after being sworn in, Mansfield was in the news again. An unknown person filed a complaint that Mansfield was mistreating his three Pomeranians. During his working hours, he kept them inside his little car, which was parked inside a Capitol underground garage. Mansfield put food, water and dog toys in the car for his pets and walked them around the Capitol grounds during his lunch break. A humane society investigator did not file charges, although he recommended Mansfield leave the dogs at home. Even though Mansfield was exonerated, the canine caper reinforced his reputation as a weirdo.
Six months later the State Bar of Texas issued an unprecedented public reprimand against Mansfield for lying during the election. Today Mansfield makes petty excuses and wild analogies to justify what he did.
"Certainly, I did some dumb things during the campaign," he says. "Unlike our president, I'm not blaming society." He then continues to compare himself to the current occupant of the White House.
"I thought I was every bit as qualified for this job as Bill Clinton was for running for president in 1992," he says. "I didn't see a single newspaper ever point out his very meager qualifications, but they sure as heck weren't afraid to take shots at mine. I thought that was unfair."
Mansfield attributes his problems to sloppiness. "I mean, here I was, a political neophyte. I acted before I thought. I certainly wasn't intending to mislead anybody." He says he accepts blame for his actions, then detours by contending that the State Bar reprimand "to some extent was politically motivated by certain people who were upset at the fact I had won." He adds, "Because even though, yes, I had somewhat exaggerated my background, there certainly have been one heck of a lot of candidates for various offices that have done that and have never been treated like I was."
As Mansfield views his world, the legal and political establishment continue to hound him and keep him from rising from his own ashes. He was turned away from a 1990 Republican Party luncheon for statewide elected officials and has yet to garner a speaking invitation to seminars hosted by the State Bar or defense attorney groups.
"I have shown I am a good judge, I am a good worker, and I write good opinions. I'm still shunned, and I don't know what I can do about that," he says.
The court has seen eccentrics before. Retired judge Sam Houston Clinton used to drive an old, beat-up Ford Mustang and wore jeans to work that had holes at the knees.
Clinton, who is retired in Austin and laments to having trouble remembering things these days, says he may have been an eccentric, but "my eccentricities didn't carry on to the kinds of things that Mansfield's done." "He just doesn't belong there on that court," he continues. "What he does when he is not a judge is despicable enough, going out and hustlin' tickets that he wasn't going to use."
Clinton lets out a belly laugh. "Oh, that's funny," he says.
It wasn't so humorous to University of Texas police, who arrested Mansfield for attempting to scalp two tickets before last fall's Texas-Texas A&M football game. The cops took his picture and cited him for criminal trespass, a misdemeanor. UT had given Mansfield the tickets as gifts.
Just as he falls short of dropping to his knees about his lies during the campaign, he makes disingenuous excuses related to the ticket-scalping affair. He emphasizes that the crime is, in his eyes, victimless. He says there are no signs banning ticket selling, and the tickets themselves don't mention scalping.
"So I reasonably felt this was perfectly okay to do. Little did I know there was this unknown rule about it."
But he did know, which makes his justification for his conduct that much more insidious. The reprimand by the Commission on Judicial Conduct states a UT police officer told Mansfield that selling UT football tickets on campus property was prohibited and issued him a written criminal trespass warning. The judge was arrested only after a second officer discovered Mansfield doing exactly what he had been warned not to do a few minutes earlier.
"Looking back at it," Mansfield says, "even though from all appearances it was okay, as a judge I suppose I still shouldn't have done it. I can see how it kind of looks tacky."
Is it also tacky that the tickets he sold at more than triple the $38 face value were given to him compliments of UT?
"I don't think that has anything to do with it," he says.
Even something as simple as Mansfield announcing whether to run for re-election has been full of quirks.
On July 19 he told the Texas Lawyer he was running for re-election in part to answer threats in an anonymous letter sent to his Houston home. The letter, dated June 30, warned Mansfield to "go away quietly and start a solo practice as an ambulance chaser" rather than further embarrass the Republican Party and the legal community, according to a copy Mansfield provided the Houston Press.
The letter also posed the question: "Do you really believe your marrying a Black woman will provide a positive thing?" Mansfield, who is white, married a Houston pharmacist, who is African-American, on November 6. They had planned to be married in May 2000 but decided in late October not to wait, Mansfield says.
One day after telling the Texas Lawyer he was running, Mansfield announced he wasn't because he didn't want his past failings rehashed in a negative campaign. He cited the same letter as a factor in the decision.
Two months later Mansfield changed his mind yet again. "My [wife] feels I should go for it," he says. "Besides, what more mud could they really drag me through?"
He also worries that giving up his seat could shift the prosecutor-friendly majority that, in his own weird way, he helped forge.
"Well," Presiding Judge Michael McCormick says about the whining of criminal-defense attorneys, "sounds to me like it's a matter of whose ox is getting gored."
It must be quite satisfying these days for McCormick to be the one applying the wounds. The longest-serving member of the current court by a dozen years, McCormick plans to end a 20-year tenure by retiring next year. Although he has presided over the court since 1989, it had long been McCormick's ox getting gored. He played dissenter for years. Although McCormick would never characterize it this way, he is now exacting his revenge.
Instead of 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 protégée. She worked eight years for the Dallas County District Attorney 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." 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 by the Houston Press for an interview.
"I don't care if Judge Price announces his decisions from a trailer park outside of Boerne, he is someone who understands the concept of fairness in the context of criminal appeals," defense attorney Wice says. "I don't think Judge Keller understands both sides. She views cases only in terms of victims."
Keller expects her reputation as a prosecution-friendly judge to be debated during her campaign, and she's ready. She reels off a list of cases in which she has ruled in favor of the defense. She also has conducted her own research and found that in September and October 21.8 percent of the court's rulings sided with the defense, more than double the 10 percent that is considered par.
"This chant that the court is agenda-driven for the state, the facts don't match it," she says. "We rule on each case individually, and we don't decide ahead of time who is going to win."
Keller also is likely to face campaign questions about her corporation leasing property to a particularly skanky Dallas topless bar called The Doll's House.
The link between Keller and the strip joint came to light when attorney S. Rafe Foreman filed a recusal motion with the court last month. Foreman had represented a young man injured in a car wreck caused by a drunk driver. The bar, at 6509 East Northwest Highway, was accused of continuing to serve the motorist alcohol after he was already intoxicated. Foreman's lawsuit sought to hold Keller's corporation, as landlord, liable under Texas's dram shop law.
The lawsuit settled this summer after Keller's corporation was dropped from the case. Foreman's recusal motion came in a later, unrelated criminal case.
Keller says she agreed to recuse herself because she wasn't assigned to hear Foreman's criminal case, but she questions the motivation behind the motion. "I think it's dirty politics," she says.
Foreman says the only reason he asked Keller to remove herself from the defendant's appeal was to protect his client. "I don't want a judge who I sued to decide whether my client gets out of prison," he says.
Keller says she owns a lot of real estate (county property records show differently) and cannot say for certain whether her corporation still owns the Northwest Highway property or whether she ever was aware of the tenant. She shakes off the irony that a corporation owned by one of the court's most rigid judges leased property to one of Dallas's seamiest titty bars.
"I don't think it's necessarily incongruous for a judge to own property that legal business is conducted on," Keller says. "I think someone is trying to make me look bad over something that shouldn't make me look bad."
Even when the prosecution doesn't ask for a favor from the Court of Criminal Appeals, judges go out of their way to give one.
Convicted killer James Howard McJunkins agreed under a plea bargain to have his murder and aggravated robbery sentences "stacked," to run consecutively. He struck the deal even though it was his statutory right to serve them concurrently since they were part of the same crime spree.
McJunkins later petitioned the court for concurrent prison terms. The state agreed to that as part of the appeal, rather than risk having both sentences thrown out and the case retried.
But that wasn't good enough for Judge Paul Womack. He ruled that a defendant legally could waive his statutory right to have sentences run concurrently, even though the state never specifically asked the court to rule on that question.
Three judges opposed Womack's 1997 ruling -- Meyers, Baird and Morris Overstreet, who did not run for re-election to the court in 1998.
"In concocting an issue out of thin air which the State does not even raise the majority's opinion is an inappropriate exhibition of judicial activism," Overstreet wrote. He and Womack both declined requests for an interview.
Baird took Overstreet's dissent a step further, adding: "The majority shall not be seen as impartial jurists but for what they are, partisan advocates advancing an agenda of reaching results which ultimately benefit the state."
Baird says the McJunkins ruling is another example of the current court bending over backward to help the prosecution. The court's attitude, he says, has trickled down to trial judges and prosecutors who feel like the high court will let them get away with murder. They have an attitude of invincibility because they know their errors will not lead to a reversal.
It has gotten so bad, Baird says, that one Harris County trial judge whispered in his ear that he feels like he could fall asleep during a trial and still not be admonished by the court. And there's precedent for something like that.
Earlier this autumn U.S. District Judge David Hittner of Houston ruled that Calvin Jerold Burdine, who has been on Texas's death row for 15 years, had a right to a new trial because his lawyer had slept through some of his 1984 capital murder trial. In a 6-3 decision, the Court of Criminal Appeals in 1995 denied the man's petition for a new trial without detailing its reasons in writing.
McCormick now says that nowhere did Burdine prove that he was harmed because his lawyer had nodded off. "Did he show, for example, that any evidence was wrongly admitted when the lawyer was asleep? Did he show that he couldn't object to something because the lawyer was asleep?"
McCormick says he isn't even convinced that Burdine's lawyer slept through some of the trial, as the attorney maintained he merely closed his eyes while concentrating. Hittner concluded not only that the lawyer had slept, but that Burdine effectively had been denied his constitutional right to have an attorney represent him at all times during his trial.
"I believe very firmly," McCormick counters, "that if a lawyer is sleeping through a trial, the judge is going to do something about it at the time."
Benefit of the doubt: trial judge. Advantage: prosecution.
With rulings like Burdine and McJunkins, and his personal nightmare of Jones staring him in the face, defense attorney Anderson says he has a hard time looking his clients in the eye.
"No matter how unfair of a trial a client got, I can't offer that person hope," he says. "I know that the agenda of certain members of this court is more important to them than my client's right to have his or her appeal decided fairly."