The highly publicized Robert Roberson case has raised critical questions about the death penalty and separation of powers. In this episode, Todd Smith and Jody Sanders sit down with criminal defense attorney Doug Gladden to tackle this difficult topic. Known for his insightful legal commentary, Doug shares his career journey from serving as a prosecutor to his new role with the Harris County Public Defender’s Office and how his views on justice have evolved along the way. The conversation moves into the challenges of criminal appellate practice, focusing on the high-profile Roberson case. Doug offers a unique perspective on the resource disparities between criminal and civil appeals, the nuances of indigent defense, and systemic issues within the criminal justice system. Tune in for a thought-provoking discussion that will resonate with legal professionals and the public alike.
Our guest is Doug Gladden from the Harris County Public Defender’s Office who a lot of our audience may already recognize if they follow him on Twitter. He’s a great commenter on all sorts of different legal issues.
Doug, thanks for joining us.
Thanks for having me on.
We’re glad you’re here. You have a slightly different background than a lot of our guests who do the civil work. Tell us a little about yourself, your background, and how you got to where you are.
It’s a bit of a long story, so I’ll try to keep it fairly brief. I grew up in Georgia. I went to Georgia Tech. I got a bachelor’s degree there in Public Policy and I minored in Economics. While I was there, I worked for the Georgia General Assembly for a couple of sessions. After that, I spent the summer between college and law school working in an electric motor plant of all things, trying to have a variety of experiences. I went to law school at the University of Georgia. I really didn’t know what I wanted to do with a law degree. I was an unfocused law student.
After my first summer, I worked for an education consulting company, so I thought about doing education law. In my second summer, I worked for the legal department at the Savannah River Site, which is the area in South Carolina owned by the Department of Energy that made tritium for the atomic bomb. It’s a cleanup site under RCRA. Based on that, I thought I might do environmental law. In law school, the topics that really interested me all seemed to hover around criminal law and criminal procedure. I didn’t do very well in first-year criminal law but I excelled in constitutional law, criminal procedure, and cases like that.
Before going to law school, I was influenced by some movies and books. Every lawyer has their own list of movies and books that made them want to be a lawyer. For me, the movies were A Few Good Men and A Civil Action. The books were A Civil Action, The Innocent Man by John Grisham, which had come out right before I went to law school, and a powerful book called Courtroom 302. That’s a book. It’s by a journalist who spent one year observing a criminal courtroom in Chicago, interviewing all the participants, and writing about their experiences. The thing that really resonated with me from all of these films and movies was the underdog pushing back against a broken system.
While I was in law school with that attitude circling in my head, I discovered Radley Balko’s blog, back when you could access it. It was the blog. He was running The Agitator. That was my first exposure to how badly the criminal system was broken and how poorly of a job the courts, prosecutors, and even defense lawyers were doing to fix it. This ultimately shaped the trajectory of my career. Radley’s blog was the first time I ever heard of this rash, brash new DA in Dallas, Texas named Craig Watkins. He was working with the Innocence Project, getting people out of jail, and using this new DNA technology to right some wrongs in the system.
About halfway through law school, I decided to focus on criminal law. UGA had a few programs that focused on criminal practice. I threw in my hat with the prosecution clinic. Through that, I was assigned to an externship with the district attorney in Athens where the university is at. His name was, at the time, Ken Mauldin. His office covered Athens-Clarke County and Oconee County to the south. We worked in both branches of his office on criminal prosecution.
That experience, probably more than anything else in law school, shaped who I am as a lawyer from three major influences. The first was Ken Mauldin, the DA. The second was the professor for the clinic, a guy named Professor Allen Cook. The third was one of the assistant district attorneys in the office named James Chafin. Professor Cook emphasized to us professional ethics above everything else. During class, he drilled law and procedure into us, but what he taught us was that the prosecutor’s first job is to do justice and to do the right thing. Ken Mauldin believed the same thing, and he hired guys like James Chafin who believed the same thing.
A few years after I graduated from law school, I was reading a news article where James was trying a murder case in Athens. He had the witness on the stand, and the witness testified describing who they had seen as the murderer. They said, “He had blue eyes.” James halted the trial. They sent the jury out, and he said to the judge, “Judge, this witness previously told me he had green eyes. The defendant has green eyes. He’s identifying someone completely different. I don’t think the defendant’s guilty anymore. We’re dismissing the case.” That was the type of integrity that the people I worked with had in that office, and it made a real impression on me.
On top of the focus on integrity, Ken Mauldin really hammered personal integrity as well as professional integrity. It’s not a unique thing to him by any means. I’m sure everybody has heard this from someone, but what he repeated over and over is, “Your word is your bond.” Between these three guys, what I took away was to do the right thing, follow the rules, and tell the truth. To me, that’s the trinity of legal practice.
In that office, that’s where I picked up the appellate bug, to tie this back to appellate law. One of the other guys in the office was overextended on his case docket and he had an appeal coming up. He let another law student and I write the brief, and we won. It’s hard to get over that. In working on that brief, what I finally figured out was that was how I wanted to practice law, but jobs in criminal appellate law are not exactly common. They’re hard to get, especially outside of a DA’s office. My thought was, “I will focus on trying to get a job as a prosecutor and maybe try to do appeals.”
I started looking at prosecutor’s offices when I got out of law school. I graduated and passed the bar. I passed the Georgia Bar and the Texas Bar and started looking for jobs. I was hired as a misdemeanor prosecutor in El Paso, Texas. I went from Athens, Georgia to El Paso, Texas, green and hilly to flat and brown. That is as different as you can get. That was when Jaime Esparza was still the District Attorney in El Paso.
I’ve got to tell a story about my experience as a misdemeanor prosecutor. It’s important. One of the things you do when you’re a misdemeanor prosecutor is you’re called a baby prosecutor. They send you to this thing called Baby Prosecutor School. It’s a program put on by the Texas District and County Attorneys Association. It’s officially called the Prosecutor Trial Skills Course, but everyone calls it Baby Prosecutor School. It’s a week-long course. They teach you all the fundamentals of plea bargaining, investigating cases, trying cases, professional ethics, tips of the trade, tools of the trade, and how to get evidence in.
There was one lesson there that really stuck with me. One of the speakers, I wish I could remember who, told us a story. They said there was once a prosecutor in Texas who was giving a closing argument. During the closing argument, they walked around the courtroom and stood right behind the defendant. They looked at the jury and said, “There’s somebody we haven’t heard from in this case, and you all know who it is.” After everyone got done laughing awkwardly, the takeaway from the story was to not do that. Point taken, but we’re all laughing and thinking, “Surely, this didn’t happen. You don’t want to be the one to do it.” We took that story and went on.
About eight months into my job as a misdemeanor prosecutor in El Paso, the Dallas DA’s office called me and offered me a job as an appellate prosecutor. That’s what I wanted to do. I can’t say no to that. I packed up and moved to Dallas. I worked there for nearly a decade. As an appellate prosecutor, your number one job is to handle direct appeals. You’re the appellee. 95% of the time, you’re writing an appellee’s brief. In addition to those duties, I got to handle some state appeals where I was the appellant. I worked in the trial courts, doing some motions to suppress. I had a docket for expunging criminal records. We took that later on while I was in the office.
The Dallas DA’s office, as best I know, started the first Expunction Expo in Texas. Vera County does one. Maybe Travis County does one. Even the very red Collin County has tried to do one of these. It’s a program where the DA’s office works with volunteer pro bono attorneys. You help indigent people clear their criminal records if they’re eligible. Once I was in private practice, I knew exactly how much you charged for these things. They’re not cheap, but the people who have criminal records can’t afford it most of the time. This was a program that helped people do it. The attorneys who participated got CLE credit and pro bono credit. It was a benefit for everyone.
The other thing I got to do in that office that I was fortunate to do was I got to work in about 10 to a dozen big high-profile trials in Dallas at the trial level as the 3rd chair appellate support. You have talked a lot about that on this show before in the civil context about the value of appellate counsel in the trial courtroom. That doesn’t happen very much in criminal cases, but sometimes, you really need it, and when you need it, you’ve got to do it. I was lucky enough to be in the right spot at the right time to do these things.
From a personal level, it ended up being very valuable. I got a few moments on TV out of some of these trials. The most fun part was during COVID. I had an oral argument in the appeal from one of these. I pulled up the YouTube video right before the argument started and the thing was being live-streamed by 30,000 people. After that, 2022 comes and it’s time to move on. I had gotten to make some changes in the criminal justice system while working in the DA’s office. I got to write and get the legislature to pass a couple of laws, The Richard Miles Act and The Botham Jean Act.
Beyond that, I wasn’t sure what more positive changes I could make on that side of the arena. This brings up an important point about being a prosecutor and an attitude I’ve always had about prosecutors in general. I always believed that the power to fix the criminal justice system begins and ends with the prosecutor. He’s not beholden to an individual client. He’s got almost unlimited discretion. He doesn’t have to ask anybody for permission to do the right thing. He can do it.
I tried to use that as a way to enact change, but then it got to the point where I thought I had done all of the good I could do, so I moved on and joined a criminal defense firm in North Texas and did general criminal defense for about a year and a half. I did everything. I did trials, appeals, pretrial, writ of habeas corpus, plea bargaining investigations, juvenile work, and grand jury package. You name it, I did it.
What I learned from that experience for the first time was that a lot of my thoughts about the criminal justice system were both spot-on and wildly off the mark at the same time. It’s true that prosecutors have tremendous power, and they do have all the power in the system. When I was a prosecutor, I could do things. Now, I have to ask for something to get done. That is a huge power difference.
What I’ve learned is that when that power is untethered from integrity, honesty, and professionalism, all that it does is destroy people’s lives. I’ve seen far too much of that on this side. When I was doing appeals as a prosecutor, I had the luxury of focusing on law. I didn’t really have to think about the people involved. As a defense attorney, particularly when I was doing trial-level work, people were my stock-in-trade. Everything I did was about the people involved.
What I learned, and I’m sure people who are reading this are going to think, “It took you that long to figure it out,” but it is better late than never, is the criminal justice system takes people on their worst day and their worst moment. It judges them and chews them up, and then if they’re lucky, it throws them back out to pick up the pieces both for themselves, their family, their friends, and their loved ones. I knew about that part intellectually but I didn’t really see it or experience it until I came to this side.
After about a year and a half of that, I moved from that firm to another firm here in McKinney. It’s a firm called Rosenthal Kalabus & Therrian. I promised to give them a shout-out. They’re good people and very good lawyers. To say I was lucky to work with these guys for a year and a half after that would be an understatement. There’s so much value in criminal law of camaraderie and working together that a lot of solo practitioners lose. Many criminal lawyers are solos for a lot of reasons. You are missing some level of support that I feel the civil attorneys probably get more than most criminal lawyers do.
While I was there, I got to go back to my roots. I got to focus on appeals, post-conviction writs, and then any research or support projects that any other attorney needed. It was a great opportunity and a great experience. A couple of months ago, Jani Maselli in Houston called me up and asked if I would like to join the Harris County Public Defender’s Office doing just appeals. It’s an offer I can’t refuse. I’ve said to plenty of people that it’s the dream job for someone like me. I get to sit in front of my computer, read records, write briefs, and also follow along with what’s going on in the news or the case law that’s coming down and think about the legal issues again. That’s where I am.
That’s cool. You worked with another episode along down there, Michael Falkenberg, who was on here back when he was at the Court of Criminal Appeals. He talked a little bit about writ practice.
I don’t have to tell you anything about writs. Michael educated you and you know exactly what writs of habeas corpus are.
In terms of I know what they are, absolutely. All the crazy procedural stuff, he told us all about it. I was completely confused and still remain that way.
This is one of the reasons why we don’t practice criminal law.
That’s why Todd and I are on the civil side.
We stay in our lane. We’re happy to know people like you who do this for a living.
I appreciate all of that background and some of your comments because they frame a lot of the conversation we want to have, talking about the criminal appellate side and, in particular, the Robert Roberson case. Generally, do you have some high-level thoughts on how criminal appellate practice is different than civil appellate practice?
I have some thoughts. The one thing I always fear when I air some of my thoughts on Twitter or other areas is I really do only know 1/2 of what I’m thinking about. I don’t know what it’s like to practice civil law, particularly civil appellate law. I’ve done civil appeals but not to the extent you guys have. The reason why I can say that is juvenile cases are civil cases and expunctions are civil cases. There are a lot of areas where the civil process or civil jurisdiction ties into criminal-related matters. I see some of the procedures that you have to work with, but as far as the business aspect or the day-to-day interaction with the courts, some of it’s guessing. I see you guys driving the fancier cars and working in the fancier offices. I think, “You must be doing something.”
One thing that is very important to distinguish between civil appeals and criminal appeals that puts a filter over how we look at the entire process is the vast difference in resources that are allocated to the two areas of law. I’m sure there are plenty of indigent, low-income, or pro se civil appellants out there. I see a case involving one on the hand-downs daily.
In the big cases that the Supreme Court of Texas or that the courts of appeals are deciding, I look at the dockets. There are usually multiple law firms and multiple lawyers involved. When I pull up the brief, sometimes, it looks like you can’t put every lawyer’s name on the cover of the brief. When I write a brief, I struggle to fill up all of the white space on the cover of the brief because my name’s not big enough.
Civil appeals seem to be litigated and the law seems to be made when there are a lot of resources to put behind a lot of lawyers to make a lot of arguments to the court who can then think about the issue and write about it. In criminal cases, you’ve probably got 1 defense attorney writing the appellant’s brief, 1 prosecutor writing the state’s brief, and then the court has to decide the case based on whatever they got. The limitation of resources goes beyond the number of lawyers. The pure number of lawyers doesn’t affect the quality of the litigation that much but the resources available do.
Full disclosure, I was talking to you guys not in private about fees that are charged for civil appeals. After you told me everything that you would have to do for a civil appeal, I asked you, “What would you say if I asked you to do all of that for $3,500?” You were laughing. The looks on your faces were exactly the reaction I wanted. What the audience has to understand is that in a felony appeal in Collin County, an appointed appellate lawyer is paid $3,500.
It’s wild.
Even if I assume that I’m working at $100 an hour at that rate, that’s 35 hours to investigate a motion for a new trial, potentially file one, have a hearing on it, get the record, read the record, research the issues, write the brief, read the state’s brief, write a reply brief, prepare for oral argument, give an oral argument, and do a motion for rehearing.
No way.
That’s shamefully low. $100 an hour as a licensed attorney, especially somebody with your experience or someone else comparably experienced, doesn’t even scratch the surface of what it takes to run a practice and make a good living. That may sound a little highfalutin, but it’s reality. We think about all the steps that have to go through to handle an appeal. The biggest problem with predicting cost is you don’t know what the other side is going to do. That may be the same in criminal practice or it may not be, but it’s not a realistic number at the end of the day,
Particularly where someone’s freedom is on the line, in our cases, it’s money. It’s a lot of different issues but very rarely will it result in someone having to spend any time incarcerated.
That’s right.
That’s the important thing to remember. The stakes in a criminal case are always someone’s life or liberty. The majority of people who are involved in the criminal justice system are indigent. Where the stakes are highest, the availability of resources is the lowest.
There’s also the resource imbalance between the state and the defendants as well.
It’s true. I mentioned private attorneys in criminal practice who work by themselves. There’s no one down the hallway you can go run an idea by. There’s no one down the hallway you can get to edit your brief. There’s no one down the hallway to review this part of the record while you review that part of the record. Don’t get me wrong. We help each other out a lot. People email me things to look at. I email them things to look at. I have multiple text threads on my phone talking about issues that people are working on, but we don’t get paid for that. That is professional friendship and professional courtesy.
I told you I didn’t want to complain too much, but this is the number one problem with the criminal justice system, whether you’re talking about trial or appeal. The resources are not being put there to draw the appropriate talent and to compensate for the time needed to do the work correctly. That’s particularly true in a criminal appeal where the presumption of guilt is attached to the defendant. The standard of review is not favorable to the defendant. You are being paid a flat fee. What is the incentive to try to innovate on the law? Throw out a few issues, file the brief, and know you’re going to lose.
Let me tell you what I think is the most salient example of what the courts think of appointed criminal appeals. There’s a rule of appellate procedure that you guys don’t have to deal with in the civil world. It’s specific to criminal cases. It’s Texas rule of appellate procedure 48.4. Everyone on the criminal side knows of this rule because it’s the rule that requires you after you lose the appeal that you have to send a copy of the opinion to your appointed client along with professional advice, telling them how to do a pro se petition for discretionary review in the Court of Criminal Appeals.
Judge Slaughter on the court has been very vocal about the value of this procedure because you don’t have the right to counsel in a petition for discretionary review. If you have an appointed attorney, your conviction is affirmed, and you want to go further, you can file it but you have to do it yourself. There are still timelines on when you have to file it. There are requirements for that petition that you have to meet. You have to meet that as a pro se inmate in prison serving out your sentence.
The rule is designed to make sure that the attorney has given you the information that you need to do that. This is what I mean by the rule showing what it thinks of our clients and of us. The rule doesn’t say, “When you lose, you have to send this.” This is what the rule says, “In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send his client a copy of the opinion and the judgment along with a notification of the defendant’s right to file a pro se petition for discretionary review.” The rule is written in a way that assumes that any opinion that comes down is going to affirm the conviction.
What are the stats on that? Is it 95%?
I pulled the stats up for 2024.
I’m glad you did. I didn’t want to necessarily put you on the spot. I’m not trying to justify the rule. You’d be sending that notice the vast majority of the time.
As far as the statistics on courts of appeals affirming criminal convictions, I don’t have that statistic pulled up. I know it is well into the mid-90 % range that criminal convictions are affirmed on direct appeal. Beyond that, I don’t have the exact number. The statistic I have pulled up instead is the Court of Criminal Appeals’ disposition statistics for the petition for discretionary review. Many of those are done by pro se defendants.
For the cases affirmed among the 14 courts of appeals that handle criminal cases, because the 15th does not handle criminal cases, for fiscal year 2023, the courts disposed of 3,788 criminal appeals. They reversed 109. The majority of the others were affirmed outright. 1,749 were affirmed outright, and then all of the others had some other type of disposition. Either the appeal was dismissed, the case was affirmed with a modified judgment or something like that. The reversal rate is whatever 100 out of 3,800 is.
It is 3% to 4%, something incredibly small. All of this is great because it sets the table a little bit for the part of the conversation we wanted to have about the Roberson case. We’re recording this on October 25th, 2024. This week, we have had a fairly unprecedented hearing on this issue in the Texas House. We’ll talk about that a little bit. Do you want to give a little bit of a background on that case and maybe how we got to where we are?
Yeah. I’m happy to. I want to give a couple of caveats intalking about this case. The first is I’m not Robert Roberson’s counsel. I’ve never talked to any of Robert Roberson’s counsel about this case. Any opinions I have about this case are mine and not those of the Harris County Public Defender. I have to put the cards on the table.
This is a death penalty case, and I am morally opposed to the death penalty. I cannot say that that does not shape my judgment on a case like this. We can talk about indigent defense and the problems with the criminal justice system for normal people and normal cases but death is different. It triggers different emotional responses in people, both in what the state wants to do to this person, what this person is accused of doing to a child, and the procedures that are involved. Those differences shape how we have to look at this case compared to many of the other things that I complain about.
That being said, my understanding of the case is that Mr. Roberson was accused of capital murder back in the early 2000s. At that time, capital murder could be committed in several ways, one of which was that you intentionally murder someone while committing sexual assault. Another is that you intentionally or knowingly caused the death of a child under six years old. The age limit for capital murder has been increased over the years. It’s up to ten for a child. It may be even higher. They keep ratcheting up the age, although the death penalty goes off the table at some point for the age of the child.
The fact that it is a child under a certain age makes it a capital offense.
That makes it capital right there. That’s important because there is another criminal offense out there in Texas called injury to a child. It can be committed in all kinds of ways. It can be anything from a state jail felony to a first-degree felony depending on how you do it and how badly the child is injured. If the child dies and the state proves that you did it intentionally or knowingly, that’s a capital felony. You are at least eligible for the death penalty.
The vast majority of child death cases in Texas that are prosecuted as capital murder are not prosecuted as death cases. The shorthand that’s used in prosecutor’s offices and among defense attorneys is what you call a mini cap. The reason why it’s called a mini cap is it’s a capital murder case but it’s tried like a regular criminal case. You don’t have all the additional trappings of a death penalty trial with extensive individual jury selection.
For the punishment phase at the end where the state is trying to get death, instead, the state is not seeking the death penalty. You try the case, like, “Did he commit capital murder?” If the jury finds him guilty, it’s an automatic life sentence. There’s not even a punishment phase. It’s one of the shorter types of trials that you can have in Texas.
That’s interesting.
In Robert’s case, the death penalty was on the table. It was tried as a death case. He was indicted for multiple charges arising from this child dying. The first was capital murder in the course of sexual assault, which we can get to. The second was the capital murder of a child under six. I believe the child was two years old. The third was he was charged with injury to a child as an alternative count. There were other counts in the indictment. I don’t know what they were.
This is the other caveat I have to give. The record in this case is extensive. It’s enormous. Yes. I’ve read parts of it. I have not read the entire record. I’ve not seen the entire record. I’ve seen the trial transcripts and a lot of the pleadings from the post-conviction litigation. My knowledge is drawn from those plus what I’ve heard at the hearing in the Texas House and reading the court opinions.
At the beginning of the trial, the state abandoned several other counts in the indictment and they went to trial on those 3 counts, the 2 counts of capital murder and the count of injury to a child. The case was tried by a jury over the course of 4 or 5 days. There was testimony about Robert bringing the child to the hospital, about him not seeming to really care much that the child was not breathing, about the child appearing to be blue, and about the first responders at the hospital trying to resuscitate the child. One particular nurse who claimed to be a sexual assault nurse examiner but apparently wasn’t was saying that she saw signs of sexual abuse that no one else saw, which led to the sexual assault charge.
There was also testimony about the child being taken to Dallas for treatment. In Dallas, the child was seen by one doctor while she was still alive and then another doctor after she died as part of the autopsy. The pediatrician who saw her while she was still alive ultimately testified at trial that she exhibited the three common signs of what’s known as shaken baby syndrome and that these injuries are the result of being shaken forcefully. That shaking causes certain sheer effects on your neck and in your head. It can cause brain bleeding, brain swelling, bleeding in the eyes, and pressure on the brain. That ultimately caused the child to go unconscious and die. The medical examiner testified that the child died of blunt force injuries that could include shaking.
There was another testimony about family members who had said they had seen Robert shake the child before, hit the child before, or yell at the child before. This coalesced into the arguments at trial that the two sides made. The state’s theory of the case was that Robert was a violent person who didn’t like his daughter and didn’t like that she was crying. He beat her and shook her out of anger and out of frustration knowing that a 200-something pound man shaking a 20-pound child and beating her would kill her.
His defense team’s theory was, “The experts all say that she was shaken. Robert shook her, but it’s not because he shook her that it means he intended to kill her.” That’s an important thing to remember about how the cases proceeded. His defense attorney did not go into court and say, “This didn’t happen.” His defense attorney didn’t go into court and say, “She died of viral pneumonia,” or, “She died of some combination of other problems.” He went into court and said, “Robert killed her. He didn’t mean to do it.” He was so wedded to that defense theory that at trial, he told the jury in closing argument, “I want you to find him not guilty of capital murder. Take that off the table.”
Beyond that, you’ve got an option of every lesser included offense. You can find him guilty of manslaughter. You can find him guilty of criminally negligent homicide. You can find him guilty of injury to a child either intentionally, knowingly, recklessly, or negligently. I don’t know which of those he’s guilty of. I’m going to leave that up to you. That was the defense case.
The state’s closing argument was, “She’s crying. She’s inconsolable. Robert is infuriated because he’s not getting any sleep. The more she cries the matter he gets. He picks her up, and if you look at the bruising on her face, he punches her in the face. He slapped her down on the face with his hand and busted her frenulum. You look where the bruises are. He grabbed her and said, “Shut the hell up.”
He pounded her head or whatever and she kept crying. Did he stop then? No, he sure didn’t. He picked her up and then he violently shook her, like has been described, on and on and nobody is there to break it up. That’s what he did. He then threw her down on the floor where he says he found her. The last thing she saw before he killed her was the hate in her dad’s eyes when he was shaking her to death. That is what she saw. Her last memory was, “Mommy,” as Daddy killed her. The defense responded to that with, “He killed her. He didn’t mean to do it.”
After that, the jury convicted Robert. There was a punishment phase. He was sentenced to death. The first procedural aspect of the death penalty is that when a person is sentenced to death, the appeal is automatic. You don’t get to decide not to. There’s an automatic appeal. It goes straight to the Court of Criminal Appeals. At the same time, your first post-conviction writ is automatic. You either get counsel, proceed pro se, or get an appointed attorney. Usually, it’s an appointed attorney. They have to start investigating a writ. They have a certain timeframe to investigate the writ and file the writ.
That writ also goes to the Court of Criminal Appeals. It’s a parallel proceeding designed to streamline direct review and collateral review of the death sentence, which is to serve two purposes. One is to theoretically protect the defendant’s rights in a death case to make sure it’s getting all the review. Second, you do all these things at once. You can get down to the business of executing them faster because you don’t have to wait for the direct appeal and then wait for the writ. It’s all happening at once. It’s designed to make it more speedy. That happened in Robert’s case. There was the direct appeal and the Court of Criminal Appeals ruled against him on his issues. There was his first writ and the court ruled against him on the writ. It sat there for a while.
There are consequences of having the writ done. That barrs a lot of what you can do after that, doesn’t it?
Yes. That’s really important. With the writ being automatic, that’s your first shot at the writ. There’s a bar for subsequent writ. I’m sure Michael talked about that. That bar exists in regular post-conviction writ and in death writ. For death writ, it’s a statute called Article 11.071 Section 5. It’s a pretty long section for death cases. It says that if you file a subsequent writ on a death case, the court cannot consider any grounds unless what you’re asking for has not been and could not have been previously presented in a timely filed writ or some type of claim of actual innocence that meets certain standards.
The statute says, “For the purposes of that rule, a legal basis of a claim is unavailable if the legal basis was not recognized or could not have been recognized on or before the date of the first writ. If there’s a factual basis for the claim, it’s unavailable if the factual basis was not ascertainable through the exercise of reasonable diligence before that date.”
Reading the court’s opinions in Robert’s case, that was the first area he really got caught up in his first subsequent writ, which was in 2014, I believe. He filed a writ. One of the things that it said was, “We had another doctor look at this case. They’ve looked at the medical information and the doctor has concluded that the viral pneumonia was a huge part of her death.”
I won’t get into all the minutiae of how a writ is litigated in the trial court and then goes up to the Court of Criminal Appeals, but at the end of the day, the trial court and the Court of Criminal Appeals both reached this conclusion. The doctor’s testimony that she had this pneumonia was new evidence, but it was based on medical records that existed at the time of the trial. The factual basis for the claim was ascertainable through reasonable diligence, so it was barred from being raised in the subsequent writ.
I want to call back to something that you said because I feel like this presumption in the way that it operates can’t be reconciled fairly with your point about appointed counsel and the lack of resources. I assume he was represented by appointed counsel in his original trial.
That’s my understanding. He was represented by appointed counsel. That came up at the House hearing. Dr. Phil of all people talked about appointed counsel. He even used the word public defender, which grated on me a little bit. He was saying appointed counsel and public defenders have a huge stack of cases and can’t give the case the attention it deserves. There’s a lot of merit to that. If we want to talk about allocating more resources to public defenders to alleviate that, I want to have that conversation.
The one thing I will push back on is I’ve been reading this trial record and these appointed attorneys didn’t do the best possible job, but they didn’t lay down either. Even as much as I complain about them saying he did it but he didn’t mean to do it, with the expert testimony they were looking at, they made a strategic decision. The question you have to ask is if appointed counsel in this case had 3 to 4 times the number of resources, could they have done anything else with it in trial? I don’t know the answer to that. Maybe they could have or maybe they couldn’t.
What I do know is that they’re still not paid a lot of money in Anderson County for capital cases. Expert expenses are capped. A common difficulty in criminal defense is you need an expert to challenge the state’s case and the court will only give you enough money for an expert who has no qualifications to challenge the state’s case. The court’s giving you money and you have to keep pushing back to get more. Sometimes, you can get more, but then that’s time that you’re exerting on an uncompensated basis to get that expert funding.
For the first post-conviction writ, there is a statutory provision to allow the post-conviction writ lawyer to hire an expert witness and submit a claim for expert funding and for council funding. One thing I don’t know about this case is to what extent that was done for Robert’s first writ. What I do know is there was no doctor who looked at this case before that first writ was filed who came to this conclusion based on these existing medical records. If we are going to assume that anything speaks for itself in law, that is probably something that speaks for itself. That was not looked into, and I don’t know why. All I know is that it wasn’t raised.
My comment was not meant as a criticism. It’s more the contrast between the standard going to be should have known under diligence coupled with the reality that the resources aren’t there in most of these cases for that to happen.
Considering what’s at stake draws the contrast.
Let me diverge from the death penalty for one moment because this is the same standard that’s used in post-conviction felony writs even without death. The one thing that we do know for sure is that there’s no right to counsel in post-conviction habeas. A lot of prisoners in Texas will get a form application for it, a habeas corpus. Once their direct appeal is over, they’ll either try to write out a habeas application themselves or they’ll get a jailhouse lawyer to do it and file it pro se. If that writ is denied and their family comes up with the funds to hire post-conviction counsel five years later, there’s nothing you can do for them. They’ve used their one writ.
When they had no resources, no counsel, and no ability to investigate the case, they raised one claim and it was denied. Everything that you may want to raise later could have been raised back then but it wasn’t because it was being litigated by a guy sitting in a prison cell who can’t. The law is not concerned with what he can’t do. The law is concerned with what he should have had the diligence to do. It sets a completely unreasonable burden on prisoners in general. That problem is so much more extensive than just the people who are on death row. That applies to anyone in the prison system who’s considering whether to try to file their own writ.
I’m sorry. I didn’t mean to take us on a tangent, but Mr. Roberson had exhausted his direct appeal and his state habeas and then went through the federal process too. He came up short on those and there was an active death warrant.
Correct. It was at that point that the science on this shaken baby syndrome came under fire. That’s when Gretchen really began focusing on that and getting experts to look into the shaken baby syndrome of, “Is it junk science? How has science changed? “What’s left if you set all that aside?” This is where the case went off the rails. They had a full-blown evidentiary hearing at some point in this writ. At the end of that hearing, both sides proposed findings for the trial court. In a writ, the trial court makes findings and sends those to the Court of Criminal Appeals. The Court of Criminal Appeals can reject those findings. They can look at the record and make their own findings. Since the trial judge is there making credibility determinations and seeing the witness testimony, what they put into these findings is given a lot of weight.
In Robert’s case, it’s my understanding that Gretchen submitted a 130-page set of findings. The state submitted about a twenty-page set of findings. The judge changed a couple of things on the state’s findings and then signed them. Regardless of what happened in that hearing and what’s in the transcripts of that hearing, the findings of fact in the case were what the prosecutor wrote and then the judge signed off on. That becomes the operative set of facts going forward looking at the case. When you see the dissenting opinion in the Court of Criminal Appeals that says, “This is not a shaken baby case. This was a blunt force trauma case where he brutally beat a child,” that comes from those findings of fact.
I had a law professor who said there’s what really happened and then there’s the legal facts. You’re stuck with the legal facts. This is an ongoing problem in the criminal justice system, particularly with writs because the writ process is divided. The trial court is making factual determinations like a fact finder, but they’re not the fact finder. The writ is returnable to the Court of Criminal Appeals. The Court of Criminal Appeals is the fact-finder, but they’re relying on someone else’s opinion of the fact-finding. It’s like hearsay testimony. You’ve got the jury in the box and you’ve got somebody saying, “This is what somebody else told me.” We object to that because the jury can’t make the credibility determination.
That’s how we litigate writ. The court is getting a filtered view of what happened and they make their decisions based on that filtered view. It provides an opportunity for manipulation because prosecutors know that the court is going to ask both sides to submit proposed findings. No judge wants to sit down and write their own findings of fact. They ask the parties to submit their own findings.
I’m not going to knock TDCAA or my friend, Andréa Jacobs, for this, but TDCAA puts out a book by my good friend, Andréa Jacobs. It teaches prosecutors how to litigate writs. There’s nothing inherently wrong with what it says. What it says is the judge is going to ask you for proposed findings. You want to put forward the law and write the findings in accordance with what happens at the hearing in a way that supports you winning on the writ as any lawyer would do.
The problem is when judges sign those without really looking at them, it’s an avenue for abuse. Either an unscrupulous prosecutor, a lazy prosecutor, or an aggressive prosecutor has a real temptation to not necessarily adhere to reality in writing these knowing that the judge is going to sign them anyway. When that happens, that becomes the facts of the case. I can’t say for sure that’s what happened in the Roberson case, but there are certain parts that it really feels like that’s what happened.
Once they got to the point of litigating the shaken baby diagnosis and its merits of whether it’s junk science or not, the trial court’s findings are very explicit that shaken baby is being discredited more and more as junk science. This wasn’t a shaken baby case. This was a blunt-force trauma case. Since it’s a blunt-force trauma case, you can’t prove that he wouldn’t have been convicted otherwise. That goes up to the Court of Criminal Appeals.
The problem with that is, remember I mentioned there were two experts who testified about the cause of death. The pediatrician’s testimony was all about the shaken baby diagnosis. In the other testimony, the autopsy testimony by Dr. Urban, she used the phrase blunt force trauma a lot. This is where Ctrl+F is your friend in the record. I did a search every time Dr. Urban mentioned blunt-force trauma. In the same sentence, she mentioned shaking. She never discussed blunt force trauma outside the context of the child being shaken.
At the end of her testimony, she confirmed that she could not separate out some other type of blunt force from the act of shaking. The most she would say is that they worked together. Anytime she used the word blunt force, the word shaking appeared in the same sentence. She never separated the two. The court’s findings that went up to the Court of Criminal Appeals did separate them out, and when it separated them out, it created this idea that there was an alternate theory of the case of pure blunt force trauma devoid of shaking that was sufficient to support the conviction. That’s not in the record but that’s what the Court of Criminal Appeals has used at every step to deny relief.
I’m glad you mentioned that because that’s one of the things I wanted to talk to you about. This has gotten a lot of publicity, and that’s the narrative that you keep hearing. It’s like, “This wasn’t a shaken baby case,” or, “That wasn’t what the basis for this was,” even to your point and in the different opinions that have come out. I understand from you why that narrative has come up because it is based more on the writ findings than it is on the actual trial record.
A lot of that is based on the standard of review and the burden of proof that the applicant has to meet in the writ process, that the trial court has to find, and that the Court of Criminal Appeals has to find, particularly in the avenue of junk science. Part of what came up at the hearing was problems with the current junk science statute and possible ways to change the junk science statute.
What’s important for this part of the discussion is the burden that the defendant has to meet and how it can get manipulated because he has to show by a preponderance of the evidence that had the correct scientific evidence been presented at trial, he would not have been convicted. What that has allowed the Court of Criminal Appeals to do is instead of using this junk science writ as a means of what habeas is supposed to be in making an equitable determination that you didn’t get a fair trial, the court is using it as another way of finding a harmless error. Harmless error is a really sore spot in the criminal field.
It can be in the civil too.
The standard is different. A lot of attorneys and judges miss that. The civil standard is it had to be an area that led to the rendition of an improper verdict. Is that still the rule?
It is judgment.
It is improper judgment. In criminal cases, there’s a bifurcated harm standard. If there was a constitutional error, the court has to find beyond a reasonable doubt that the error did not contribute to the conviction. Anything else that doesn’t affect substantial rights has to be disregarded. That substantial rights, anything else, has turned into this rule of, “If the evidence was overwhelming, then this wouldn’t have mattered. We’re going to uphold the conviction in the face of all kinds of errors, like improper hearsay coming in and improper evidence coming in.”
That’s not what happened here, but it’s something similar to what happened here. The Court of Criminal Appeals is saying, “There was evidence of blunt trauma. Dr. Urban used the words blunt trauma. There was testimony of bruising. This could have been a blunt trauma case. The jury could have found him guilty of beating her instead of shaking her.” All this evidence of shaking and extensive testimony from two doctors about shaking and it causing death didn’t matter. That’s not what caused him to be convicted.
There was another case where the Court of Criminal Appeals wrote an opinion where they laid that plain. It was a death penalty case from Collin County. The guy’s name was Chanthakoummane. He was accused in the early 2000s of killing a woman at the Craig Ranch development. In part of the state’s case, there was bite mark evidence. Bite mark evidence has been found to be junk science. When he raised that issue in a writ under the junk science rules, the Court of Criminal Appeals said, “He would’ve been convicted without the bite mark evidence. It played a minimal role in his conviction, so he doesn’t get relief based on that.”
In that case, there was DNA evidence and eyewitness testimony. That had other problems itself, but there was what the court viewed as overwhelming evidence. In Robert’s case, there’s no overwhelming evidence absent the shaking testimony. All of the blunt force evidence was connected to the shaking testimony. The court hasn’t written an opinion saying otherwise. They’ve denied relief without opinion but for the one concurrence that said, “This is all-sufficient.”
This is an interesting period, but where it has gotten particularly interesting and a little bit unprecedented is not long ago. He went through the writ process to no relief. There’s been a background effort publicly for people to start to see the problems here that there are some significant concerns about the science that was used and whether or not this moved forward.
We get to the point where there’s an execution date set. It looks like it’s going to go forward. The courts, up to that point, denied relief, the Court of Criminal Appeals, Federal courts, and whatnot. It gets almost to the eve of his execution and you have a bipartisan group of legislators who call a hearing of the house. Is it the Criminal Jurisprudence Committee?
Yeah.
They issue a subpoena for Mr. Roberson to appear in person and give testimony about his experience with the junk science writ. It set off what I would describe as a mini-constitutional crisis in Texas because they filed a subpoena. The state makes it pretty clear they’re not going to comply with it. The two representatives, the chair and then Jeff Leach, file a petition in Travis County Civil District Court for injunctive relief, restraining order, and declaratory judgment about the validity of their house subpoena and get a TRO.
The state takes a mandamus to the Court of Criminal Appeals which says, “This is a criminal matter. We get to decide this. We’re going to dissolve the TRO.” The House goes to the Texas Supreme Court and says, “We want a writ of prohibition and stay saying this is within your purview and the Supreme Court. What has to be the first death penalty case they’ve probably ever gotten involved in says this might be a civil matter. They don’t say anything. They issue a stay. Two others issue a concurrence that says, “This may well be a civil matter so we’re going to grant the stay.” We’re in this weird place where we don’t know.
To call this unprecedented is 100% accurate. We do have some interesting writings. We could spend an entire episode on this topic. It has been great to hear you give us the details about the Roberson case because you don’t really know it. There’s been a lot of stuff in the media. Everybody’s an expert. There is a lot of commentary on Twitter and otherwise online about what went on with the habeas, the evidence, and what it showed in the legal standard. You’ve given us some other things to consider in all of that.
You referenced the House committee and how that went down. Jody gave us a really solid overview of the competing provisions going on here. I’ve come to describe it as a separation of powers may lay. Give us your take on some of this. I looked at the PC opinion. From what I could gather from it, which also featured a dissent by Judge Newell and a couple of other judges on that court, this wasn’t a civil district court that the TRO was sought. As I understood the logic of the Court of Criminal Appeals, it is effectively halting an execution, so therefore we have jurisdiction to issue a mandamus on this.
That’s right. The Court of Criminal Appeals is very protective of its jurisdiction. Everyone has learned that Texas has an almost unique high court system where there are two high courts. There’s the Court of Criminal Appeals which is the final appellate court in criminal matters, and then there’s the Supreme Court of Texas. That’s the high court for everything else. The only other state that’s similar is Oklahoma. Theirs is slightly different because you have two equal high courts. The Supreme Court is considered to be the first among equals. As I understand, it has the power to tell the Oklahoma Court of Criminal Appeals, “You don’t have jurisdiction over something. We are going to take jurisdiction.” Texas is the only one where they are equal. They get to get into fights like this.
What happened in this case is almost unprecedented. It’s almost unprecedented because there is an older case where a defendant who is on death row was seeking a clemency petition, which is a civil matter. He filed something with a district court saying, “I want you to invoke civil jurisdiction and stay my execution until I can petition for clemency.” The Court of Criminal Appeals jumped in and said, “You’re a defendant trying to stop your execution. That’s a criminal matter. We have mandamus jurisdiction over it. We order the district court not to do this.”
That’s the precedent that everyone’s relying on and talking about. When you read Judge Newell’s dissent in the Court of Criminal Appeals case, he latches onto that. He says, “That’s different from what happened here. That was a defendant trying to stop his execution. This is a legislative committee exercising its statutory process power to issue a subpoena.”
We’re not just talking about a defendant going to court to stop his execution. We’re talking about another branch of state government trying to exercise its power that happens to interrupt the ongoing exercise of the judicial power and the executive power of execution. It doesn’t inform the decision perfectly. Perhaps that’s what the briefing in the Supreme Court of Texas is going to look at. It’s like, “What is the scope of that ruling? Does it apply not just to when a defendant is trying to interrupt the execution proceeding but when anyone is trying to interrupt the execution proceeding?”
What is interesting is not only does the legislature have this processing power or the ability to issue subpoenas, but the government code goes further. It says that whether they’re issuing a process or doing anything else to exercise their power as a legislative committee, they can request necessary assistance from all the state agencies, and those state agencies shall assist the committee that requests assistance.
You saw that at the beginning of this process. The testimony came out at the House hearing that when the committee issued their subpoena for Mr. Roberson, the Texas Department of Criminal Justice reached out and said, “We’ll cooperate. We’ll bring him here. We’ll try to get him street clothes and bring him to testify.” The next day, there is an announcement from the Attorney General’s office that that’s not going to happen and that they’re fighting this. What you see here is if we’re going to talk about agencies fulfilling their duties under the Constitution and statute, you see the Department of Criminal Justice trying to follow its statutory duties of assisting the legislature and then the executive agency of the AG’s office stepping in and telling them not to.
I need to add a disclaimer of my own. One of my law partners, Eric Nichols, is the chairman of TBCJ. I’m glad to hear you say that TBCJ attempted to comply because we might have had some explaining to do otherwise. Thankfully, by all appearances, TBCJ did its part. It was the AG stepping in and saying, “Not so fast.”
I don’t know if that’s going to come up in the Supreme Court of Texas, but as I’ve looked at it, it seems to me like there was really no constitutional crisis until an elected executive officer said, “I’m not going to assist the legislature.” To me, that’s the constitutional crisis here more so than the courts wrestling over who has criminal jurisdiction and who has civil jurisdiction.
To throw an interesting wrinkle on this with the discussion of who has jurisdiction here, the civil matter and the TRO appear to fall in these new statutes that they passed for the 15th Court of Appeals jurisdiction because it’s a state agency as a defendant. It doesn’t fall within any of the exceptions. It’s interesting to see how it plays out.
As we sit here on October 25th, 2024, there’s a briefing on the merits due at the Texas Supreme Court. By the time it gets released, we may know something or it may become moot because I understand there are some discussions between the legislative committee and the state. I say the state broadly because I’m not sure exactly who is speaking as to see if they can find some way to work out a deal, whether maybe they go to the Polinsky unit in Livingston or some other thing. One thing we haven’t mentioned here is there was a proposal to have him appear by video but Mr. Roberson has autism. There was a discussion as to whether or not that would work well. There are all sorts of other concerns that arise in this context.
That was a seemingly difficult choice that his attorney had to make. You have a man who’s been in solitary confinement for two decades who has autism and he’s being asked to have the type of communication that you and I are having over Zoom. I find this more difficult than in-person communication. The ease of that goes downhill dramatically the more neurodiverse you get with a person, especially somebody who has not been exposed to modern technology.
This is not my first Zoom meeting. I’ve been using Zoom since COVID a few years ago. He has never used Zoom, so he has multiple hurdles to overcome in making that work. It’s my understanding that the biggest challenge of the committee going to him is that the committee traveling outside the capitol requires approval from the speaker. It’s not something that Chairman Moody can do on his own, but it is a very interesting possibility to go on a field trip down to see him in prison and talk to him in person down there.
We’re going to be following it. Maybe when all the dust settles, we might have to do a follow-up episode, Doug, focusing on what the outcome was. Judge Newell’s dissent and the PC mandamus out of the Court of Criminal Appeals, I would recommend reading. On the emergency motion to stay, what we have out of the Supreme Court is a concurrence joined by two other justices from the Supreme Court. It does a really good job of setting up the separation of power issues and looking ahead to what the possible result could be but recognizing that that is very uncertain.
At this point, it does not purport to prejudge the case in any way, shape, or form. There is a merits briefing that’s about to be filed. I would suspect, as with some other issues before the Supreme Court of late, that the court will probably expedite a decision in this matter. I don’t know if any of us want to dare make a prediction about how the Supreme Court will come out on this. The Court of Criminal Appeals, the mandate is issued with an indication that no rehearing motions will be considered. It’s a dead letter in the Court of Criminal Appeals. What the Supreme Court does with this will be very interesting. I have to say that I don’t dare predict.
I don’t dare predict either. You said one thing that is important for everyone to know. It is that in the Court of Criminal Appeals when you’re talking about writ, when writ relief is denied, there is no motion for rehearing. The only way to get rehearing from the court on a writ is for the court to rehear the case on its own motion.
The rules do not put a time limit on the court’s ability to rehear something on its own motion. There is thought at least that if one judge changes their vote or January 1st comes and a new judge votes differently, the court could potentially rehear this on its own motion. That is speculative at best, but it is another procedural quirk to this process. The quirk retains a lot of power that may not necessarily exist in other types of cases.
No matter who wins the election, there will be three new judges on the Court of Criminal Appeals in January 2025 regardless of which party.
That’s exactly right.
One strategy may be to wait until January 2025. Is there any distinction between this being a mandamus as opposed to a writ of habeas corpus and the post-opinion proceedings in the Court of Criminal Appeals?
Potentially, yes, but the other thing to keep in mind is not only do you have that mandamus but you have the subsequent 11.071 writ that the court is looking at. That ruling of denying relief as being barred under Section 5 was also a 5 to 4 decision. That was also the ruling that denied the motion to stay the execution, and it was a 5 to 4 decision. There are avenues for votes to change.
I was going to switch to a slightly different topic. If you have more and you want to talk about this one, go ahead.
That’s a good segue.
As we’re closing, Doug, I’m curious. The Roberson case has become exceptional in terms of both the coverage, the interest, and the issues that have come up in it, but it’s not exceptional in the sense that Texas has a lot of death penalty cases with a lot of issues involved whether evidentiary, constitutional, or all of that. Are there some systemic changes that people are talking about here that could assist with that?
You and I agree. Since we’re all making disclaimers here, I am opposed to the death penalty both on moral and practical grounds for a lot of reasons. As someone who makes my living knowing that courts of appeals and trial courts make mistakes, it is hard for me to reconcile a process that provides enough certainty to take someone’s life. Setting that aside, I’m curious. What are some ways that people are talking about to reform the system or maybe make it better one way or the other? Are there any?
There have been a few ideas that have been broached at the committee hearing. Judge Alcala, who used to be on the court, submitted a list of several ideas. Her ideas are a good starting point. They’re not perfect, but there are areas where there could be reform in a way that the legislature could take the lead on some, and on others, the court would have to take the lead.
The most extreme is simply abolishing the Court of Criminal Appeals. I don’t exactly think that’s a bad idea. The court is an accident of history. I have an ongoing project to look into this more. There is no jurisprudential reason why the Court of Criminal Appeals should exist. It was invented in the late 1800s to relieve pressure from the Texas Supreme Court after 10 years of existence.
There was a proposal to get rid of it. The Texas Bar came to the conclusion that it was resolving cases so quickly and efficiently that we should keep it. It stayed until sometime in the early ‘70s when it was given discretionary review jurisdiction instead of direct appeal jurisdiction. It was expanded and more judges were added to the court.
There was no real constitutional convention anywhere where they said, “Let’s change up theories of judicial branch structure and have two courts.” It was a stopgap measure that worked for a time and everyone said, “If it’s not broken, don’t fix it.” What we’re seeing is that it is broken. Everybody can have their opinions on whether 9 Republicans on the Supreme Court of Texas Act are any different than 9 Republicans on the Court of Criminal Appeals of Texas, or 9 Democrats on the Supreme Court of Texas versus 9 Democrats on the Court of Criminal Appeals. Maybe or maybe not, but what you would have is a consistent jurisprudence for the entire law of the state and you would not have jurisdictional conflicts between two high courts. That is what you have, and that is a problem.
The Court of Criminal Appeals has shown in a case like this that it’s not acting when it should act. I heard from multiple people that what it felt like was when the Supreme Court issued that stay, the adults in the room had finally stepped up. When that’s your reaction, then there’s something wrong with the court. That’s the change that would require a constitutional amendment and all kinds of things beyond a legislative act. That’s the biggest thing that could be done.
She proposed another idea that you need five judges on the court to grant a stay of execution. Why not change that to four judges? It takes four judges to grant a review of a case. Granting a stay is a means of granting review of the case. Why not let four judges grant the stay and then review the writ? It’s the same thing with a decision to deny relief under the Section 5 subsequent writ barr. Why make that a 5 to 4 vote to deny relief? Why not make it a four-judge vote to review the writ and then the writ be decided on its merits by a majority vote? You may end up in the same place, but at least you’re getting your opportunity in court to present your evidence.
You and I are asking the same question, Todd. For the subsequent writ barr, is that a statutory issue, a case law issue, or both?
It’s a statutory issue. It is in the 11.07 felony writ statute, the 11.071 death writ statute, and the 11.072 probation writ statute. There is a limit on the court’s ability to consider a subsequent writ if one has already been filed. It exists because of the idea that the courts, the state, and the people have an interest in finality. You should get your one bite at the apple unless you can find something legitimately new. What we’re seeing here is that when people are finding something legitimately new, they’re still not getting their day in court.
That’s a legislative change.
The voting process would be the court’s internal policy. The legislative change would be to the language of the writ barr itself. You have multiple elements of the writ barr that are in statute. There has to be a factual basis that was not ascertainable through the exercise of reasonable diligence. The junk science writ says you can prove that if your issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence on or before the date on which the original writ application was previously considered. That’s the standard. You also have to show by a preponderance of the evidence that you wouldn’t have been convicted of all of the other things.
What the legislature can do is change those requirements. It can lower those barriers. If the court is going to say, “Reasonable diligence means this. Preponderance of the evidence means this,” the legislature can say, “It doesn’t,” or the legislature can change the standard to something lower that the court then has to apply.
There was a lot of talk about, “Should the burden be on the defendant not to prove this by a preponderance of the evidence but he simply has to show that he probably would not have been convicted?” You could go the other way. You could say the state has to prove that he would’ve been convicted but for this evidence. Maybe that’s too high of a burden, but there are a lot of burdens that are not as heavy as even a preponderance of the evidence for showing that new science needs to be considered.
In an actual innocence claim, you have to prove by clear and convincing evidence that no reasonable juror would’ve convicted you. The court says that’s a Herculean burden. It’s based on Supreme Court case law, but Texas can provide greater protection by lowering that standard under Texas law. Those are decisions for the legislature.
Another idea is you could change the procedural barr completely. One way to do that is you add a provision that allows the state to waive the procedural barr. If you’re procedurally barred, the court’s going to dismiss your writ. What if the prosecutor agrees with you? Shouldn’t they be able to waive that? Shouldn’t that be more of a defensive issue than a procedural barr? If it’s a defensive issue, the state could waive it. That is an easy change. There have been proposals in the past to do that with the time limits on motions for new trials. You could do the same thing here and allow for a waiver by the state.
These are some of the ideas that have been floated around. I hope they’re simple enough for people who don’t practice in this area to understand, which helps when you’re talking about a legislature that’s full of lawyers who don’t necessarily do criminal law. You want something that can be understood as this is leading to a just outcome. That’s what these specific proposals are really getting at.
This is a loaded question from a much broader perspective. The issues that we’re confronting, at least in this case, would be alleviated if the legislature were to abolish the death penalty.
That would solve all of these problems in Robert’s case.
The death penalty cases.
This is a balancing act because we heard at the committee hearings that there are legislators on the Criminal Jurisprudence Committee who are 100% in favor of the death penalty and are opposed to it being administered in this case. Some of the witnesses were very explicit that their fear of executing an innocent person like Robert would have the effect of drawing public attention to the death penalty in a negative way and would result in its abolition.
One of the reasons why they are trying to avoid the death penalty for Robert is to save the death penalty for cases where they think it should be applied. I’m not going to judge that viewpoint. As long as interests line up, they line up. The question I would ask everyone is, at the end of the day, if one innocent person is going to be executed and the only way to prevent that from happening is to reprieve everybody on death row, would you do it? The moral answer to that question is yes.
There would be a whole lot more to unpack in that if it were on the table because we have this whole system that’s set up around it. That’s probably the topic for another episode. We’ve gone a little long, but we really appreciate you coming on with us.
This was super interesting.
We really enjoyed hearing about your compare and contrast with criminal appeals versus civil. You made some great points there. Diving into the details of the Roberson case, I learned a lot about that. If we see these kinds of systemic issues, it’s important to explore them and put discourse out into the world that those who are in a position who make decisions or influence them can consider it. We sure appreciate you being here. Thanks for spending the time with us.
I appreciate you having me. I know we’re running along, but you mentioned in the email that you wanted a war story.
Let’s have it. This is the perfect way to end it.
We will not cut you off of your war story.
I couldn’t think of one. You’ll understand why this matters. I got to work on one cold case as an appellate prosecutor. It was a double murder from 1981 where a mother and her child were both murdered in a field in Mesquite. It went unsolved for about a decade. There’s an episode of Unsolved Mysteries that was made about the case.
Eventually, they caught the guy who did it because he had been convicted of sexual assault in another case in Vera County in the ‘90s and given a DNA sample as part of the conviction. They were able to match that years later to the one hair that they found at the crime scene and link him to it. He was eventually tried and convicted in Dallas of the 1981 murder. Brandon Birmingham, who’s a judge in Dallas, prosecuted the case.
I got the appeal and started researching it. What I discovered was that this defendant, whose name is George Hicks, had been convicted of rape in McLennan County down in Waco in the early ‘70s and given a life sentence. You’re asking the same question as I am. How does a man go from a life sentence for rape in the ‘70s to kidnapping and murdering a woman and her son in Mesquite in 1981? The appeal from that case tells what happened. It’s a published case from the Court of Criminal Appeals. That was back when they had direct appeal jurisdiction.
He gets convicted and it goes straight up to the Court of Criminal Appeals. Judge Onion writes the opinion. This is what I read in the opinion, “This is an appeal from a conviction for rape where the punishment was assessed at life following a verdict of guilty. During the argument of the prosecutor at the guilt stage of the trial, he argued, “He had his lawyer arguing to you and everything, but there is somebody here that we haven’t heard from in this case, and you all know who it is.” The story they told us that Baby Prosecutor School wasn’t apocryphal. It was this case. The court reversed his conviction to a life sentence. I don’t know what happened after that, but he ended up in Mesquite in 1981. That one remark by an unethical prosecutor cost a woman and her son their lives.
That is the perfect story to wrap up this episode on.
That is indeed a war story. Thanks again, Doug. We really appreciate it.
This is so interesting. We really appreciate it.
Thank you, guys. I appreciate you letting me come on here and say my piece about this stuff.
Important Links
- Harris County Public Defender’s Office
- Doug Gladden’s Twitter Page
- Doug Gladden’s LinkedIn Page
- Extraordinary Writs in Criminal Cases | Michael Falkenberg
- A Civil Action
- The Innocent Man
- Courtroom 302
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