Court stays Skinner execution

On Monday afternoon the Texas Court of Criminal Appeals stayed Texas' planned killing of Hank Skinner on Wednesday night.

The Court issued the stay to allow Mr. Skinner to litigate the issue of whether or not he is entitled to have DNA tests run on items taken into evidence by investigators. The laws regarding post-conviction DNA testing changed after Mr. Skinner was convicted of killing his girlfriend and her two adult sons back in 1993, but the new law was never applied in Mr. Skinner's case.

Last week Gray County District Judge Steve Emmert denied Mr. Skinner's request to test the items.

Next to Mr. Skinner, the happiest person in the room is Gov. Rick Perry who dodged having to decided between killing a man and granting a 30-day stay so that the matter could be litigated. With his presidential campaign taking on water at a rapid pace, he couldn't have been happy with the choice that was put before him.

By now we should all be aware that you don't walk out of a courtroom knowing the truth. You walk out of the courtroom with a verdict. There is a big difference.

Mr. Skinner was convicted of three murders. That jury decided it was appropriate for the state to kill him. But, if we're going to allow the state to take lives, shouldn't we at least make certain that the right person is being killed? DNA testing was not performed on certain pieces of evidence - that was a tactical decision by Mr. Skinner's attorney. That decision may have been right or it may have been wrong.

But the fact remains that the items were never tested.

The results of the testing may or may not prove Mr. Skinner's innocence. The fact that someone else's DNA is on those items doesn't mean that Mr. Skinner didn't commit the crimes for which he was convicted; but it does cast more than a shade of doubt on that determination.

And if we're going to sit back and watch the government exercise its greatest power - the power to take a life - then we damn well better be certain that the person strapped to that gurney did the deed.

Skinner stay of execution

Attacking their own

The Republican primary for Presiding Judge of the Texas Court of Criminal Affirms Appeals should be a most interesting affair as a sitting judge, Lawrence Meyers, challenges the incumbent, Sharon Killer Keller.

Judge Meyers was elected to the highest criminal court in the state in 1992, after serving on the Fort Worth Court of Appeals from 1989-1992. Prior to serving on the appellate bench, Judge Meyers practiced civil, criminal and appellate law in Fort Worth. Before moving to Fort Worth in 1975, Judge Meyers was a prosecutor in Kansas.

Judge Meyers authored the Court's opinion in Ex parte Elizondo, 947 SW2d 202 (Tex.Crim.App.2002) in which the court held that the Due Process Clause of the US Constitution "forbids, not just the execution, but the incarceration as well of an innocent person." Judge Killer Keller, on the other hand, joined in the dissent, on the grounds that reopening cases to determine whether the defendant was, in fact, innocent, threatened the "finality" of jury verdicts. Heaven forbid!

Judge Killer Keller is best known for ignoring protocol and closing the court to prevent Michael Richard's attorneys from filing a last minute appeal on the afternoon of his scheduled execution. Judge Killer Keller was found to have violated the rules of the court and was issued a public warning for her actions. The decision was later overturned as the Commission on Judicial Conduct was not authorized to issue a public warning. Judge Killer Keller is also known as Judge No as she is consistently dissenting from court opinions recognizing that the Bill of Rights contains protections for criminal defendants.

The mere fact that a fellow member of the CCA is challenging the presiding judge is telling. The fact that both judges are Republicans should make it clear that many in the GOP have grown weary of Judge Killer Keller's act. Through her actions in the Michael Richard affair, the Presiding Judge brought disdain and ridicule to the Court.

This one race might be enough to encourage Democrats to cross over and vote in the Republican primary next spring to oust Judge Killer Keller from the bench.

Splitting hairs and denying relief

In 1999, Neal Hampton Robbins was convicted of capital murder in the death of his girlfriend's 17-month-old child. In 2011, the Texas Court of Criminal Appeals denied his request for relief due as a result of "false or misleading testimony."

During the investigation into the death of the child, Dr. Patricia Moore of the Harris County Medical Examiner's Office was asked to conduct an autopsy. She concluded in her report that the child died due to "asphyxia of the chest and abdomen" and that the child was the victim of a homicide. At trial, the defense expert, Dr. Robert Bux of the Bexar County Medical Examiner's Office testified that the cause and manner of death could not be determined.

In 2007, Dr. Dwayne Wolf of the HCMEO was asked to review Dr. Moore's findings in the case. In May of that year, Dr. Wolf amended the death certificate to indicate that the cause and manner of death could not be determined. Dr. Moore's supervisor at the time of the autopsy, Dr. Joye Carter, told Montgomery County prosecutors that she concurred with Dr. Wolf's findings.

Then Dr. Moore sent a letter to the Montgomery County DA's Office and stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of undetermined, undetermined is best for this case.

Dr. Moore went on to state that since the date of the autopsy she had received additional training and believed that the bruises on the child's body could have been caused by aggressive CPR or other attempts to revive the child.

In June 2007, Mr. Robbins filed a writ of habeas corpus asking that his conviction be vacated as the result of newly discovered evidence. The State of Texas, in its initial response, concurred. The trial court, however, appointed another forensic pathologist to review the documents in the case. Dr. Thomas Wheeler of the Baylor College of Medicine also concluded that the cause and manner of death could not be determined.

A Montgomery County Justice of the Peace then appointed another forensic pathologist to review the case. This time the state got what it wanted - Linda Norton concluded that the child was suffocated. She said she believed the child was murdered but could not state beyond a reasonable doubt that Mr. Robbins killed the child.

In August 2008, both Mr. Robbins and the state prepared findings of fact and conclusions of law stating that Mr. Robbins was entitled to a new trial. However, after Ms. Norton reaffirmed her opinion that the child was murdered, the state changed its tune and urged the court not to grant any relief to Mr. Robbins.

In January 2010, the trial court denied relief for Mr. Robbins stating that the changed opinion of an expert witness was not sufficient to overturn a jury's decision to convict.

Last month the Texas Court of Criminal Appeals ruled that since Dr. Moore's trial testimony hadn't been proven false, that Mr. Robbin's claim of actual innocence failed. The majority found that Dr. Moore's changed opinion did not render her trial testimony false. The court relied on the fact that Dr. Moore testified "openly" about her findings and conclusions.

The court's rationale was that no one testified that Mr. Robbins didn't commit the murder.

Here, similar to the criminalist's testimony that she could not positively identify the sample, cross-examination by the Applicant established that Moore's testimony was her professional opinion and that she was not ruling out other reasonable hypothesis by which Tristen died. In addition, like the criminalist's testimony, that asphyxia was the cause and homicide the manner of Tristen's death has not been entirely refuted. As the convicting court determined, "[n]o expert rules out asphyxia as the cause of death," "[n]o expert can exclude Applicant as the perpetrator if it is a homicide, and no expert has excluded homicide as the manner of death." During the habeas proceedings, various experts have opined that the autopsy findings do not adequately support Moore's conclusion that the death was a homicide by asphyxiation (and Moore herself has adopted that position, but none of the experts have stated that Tristen could not have been intentionally asphyxiated. And although they critique Moore's interpretation of the petechiae evidence upon which she relied at trial, the "non-specific" indicator cannot be ruled out as being the result of asphyxiation. On the other hand, at least one well-qualified pathologist, Dr. Norton, has concluded that the child was a victim of homicide by asphyxiation.

In dissent, Judge Alcala (the newest member of the panel) argued that the majority was splitting hairs and denying Mr. Robbins the relief to which he was entitled. She wrote:

The record shows that, as the sole witness establishing cause and manner of death for the State at Robbins's trial, Dr. Moore testified that, based on her scientific opinion beyond a reasonable doubt, the cause of Tristen Rivet's death was asphyxia due to compression of the chest and abdomen, and the manner of death was homicide. In her evidence concerning this application for a writ of habeas corpus, she now concludes that the cause of death was, beyond a reasonable doubt, not compression asphyxia, and undeterminable as to homicide, asphyxial or otherwise. Dr. Moore's subsequent testimony is a complete refutation of her trial testimony because, although her trial testimony stated that, beyond a reasonable doubt, the cause of death was compression asphyxia and the manner of death was homicide, she now says that the cause and manner of death are, beyond a reasonable doubt, "undeterminable." Both positions cannot be true. This wholesale refutation of her previously professed scientific certainty nullifies the veracity of the conclusion itself... 

Perhaps Dr. Moore's testimony could not be called "false" if, for example, she consistently determined, beyond a reasonable doubt, that the manner and cause of death could be established with scientific certainty and that the manner of death was homicide, but was uncertain whether the cause of death was asphyxia by some means other than compression. See Berger v. United States, 295 U.S. 78, 82 (1935) ("The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused."). But Dr. Moore's changed testimony is not merely a variance in proof. Her present position acknowledges that the cause and manner of death could possibly be natural causes or homicide and that both are equally likely. An acknowledgment that trial testimony could possibly be correct because no one can determine the cause and manner of death with scientific certainty is vastly different from evidence that the cause and manner of death are proven beyond a reasonable doubt with scientific certainty. I, therefore, agree with the trial court's assessment that the record shows that Dr. Moore's testimony was false.

Mr. Robbins should receive a new trial. While Dr. Moore didn't lie on the stand during Mr. Robbins' trial, she has re-evaluated her findings and she has come to a new conclusion. That new conclusion contradicts the testimony she gave at trial. Had the jury heard this new testimony, the question becomes was there a murder?

I think we owe it to Mr. Robbins to find out.

Court holds that reasonable suspicion cannot be developed retroactively

Can the police develop reasonable suspicion to make a traffic stop after the fact? When put that way, the obvious answer is no. If reasonable suspicion is required to make a traffic stop, one either has it at the time of the stop or doesn't.

But, to the courts, it wasn't such an obvious answer. At least before the Texas Court of Criminal Appeals issued its ruling in Martinez v. State, Nos. PD-1238-10 and PD-1239-10 (2011).

Police in Del Rio, Texas were notified by an anonymous caller that someone was acting suspicious and  had put two bikes in the back of a blue pickup. Officer Hurley spotted a pickup that looked blue and began following it. After following the truck for four blocks, and not seeing any traffic violation, Officer Hurley stopped the truck.

When he walked up to the truck, the officer noticed two bikes in the bed. Upon contacting the Mr. Martinez, Officer Hurley noted a strong odor of alcohol and glassy eyes. To no one's surprise, Mr. Martinez was arrested for driving while intoxicated. To make matters worse, Officer Hurley also found a usable amount of marijuana after the DWI arrest.

Mr. Martinez filed a motion to suppress the stop, arguing that there was insufficient basis to stop his truck since the caller was never identified. He also argued that Officer Hurley lacked reasonable suspicion to make the stop. The trial court denied his motion and Mr. Martinez pled guilty to both charges. The Court of Appeals upheld the trial court's ruling.

The Court of Criminal Appeals then ruled that the officer lacked reasonable suspicion to make the stop. While the caller was never identified, she did appear at the scene following the traffic stop. However, the basis of the stop must be determined by the facts at the time of the stop, not by what the officer learns after making the stop. In this case, the officer had a tip from an anonymous caller. He never observed a traffic violation. He didn't find the bikes in the truck until after he made the stop. But for the illegal stop, he never would have noted any signs of intoxication; and, he never would have discovered marijuana in the truck but for the DWI arrest. In other words, in order to effect a traffic stop, the police must have specific articulable facts indicating that criminal activity is afoot before making the traffic stop. Any reasonable suspicion developed after the stop cannot be used to justify the stop in the first place.

The Court of Criminal Appeals reversed the conviction and remanded the case for further proceedings.

Texas court lowers the standard for reasonable suspicion

Over the years court have continually lowered the standard by which a police officer may intrude upon the liberty of an individual. A law enforcement officer in Texas can stop a motorist on what the law calls "reasonable suspicion." A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot.

If the officer can't do it, then there was no reasonable suspicion and the stop is deemed illegal.

Well, at least that's the way we learned it.

According to the Texas Court of Criminal Affirms Appeals, a person's strange, non-criminal behavior, can give rise to reasonable suspicion that he would soon engage in a criminal act.

In Derichsweiller v. State, No. PD-0176-10, (Tex.Crim.App. 2011), an officer was called out to a Wal-Mart parking lot after a couple in the McDonald's drive-thru called 911 about a man who drove up alongside their car and grinned at them. He drove around the restaurant and stopped and grinned a second time before driving off into the Wal-Mart parking lot.

There were no allegations that Mr. Derichsweiller was doing anything illegal -- just weird. The officer stopped Mr. Derichsweiller while he was circling the Wal-Mart parking lot. The officer didn't witness Mr. Derichsweiller doing anything remotely illegal. Of course after he stopped him, the officer noted a strong odor of alcohol and then commenced a DWI investigation. And Mr. Derichsweiller had two prior DWI convictions.

The trial court found no problem with the stop and denied Mr. Derichsweiller's motion to suppress. The Court of Appeals, on the other hand, had a problem with the stop and reversed the trial court on the grounds that neither the officer, nor the couple at the restaurant, witnessed any behavior that suggested Mr. Derichsweiller was involved in criminal conduct.

The Court of Criminal Appeals disagreed and stated that

[w]hile it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant's conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability--a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.

So now what does "reasonable suspicion" even mean? Does it mean anything? Sure, Mr. Derichsweiller's behavior was bizarre, to say the least, but does it follow that bizarre behavior now gives rise to reasonable suspicion that someone is about to commit a crime?

Reasonable suspicion of what? The facts pointed to no criminal offense. The officer's observations of Mr. Derichsweiller's driving pointed to no criminal offense. It would appear that the court's decision had more to do with finding a way to uphold a felony DWI conviction than upholding the Constitution.