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08-Jan-2015 04:29

And in general, what they want is to side with the state and wherever possible issue what Judge Richardson called a "harsh result." Bottom line: This was a judgment call.They could have interpreted their writ authority more broadly, either on the textual grounds Judge Alcala proposed or just in the interest of justice (in the absence of legislative intent either way).The Texas Court of Criminal Appeals today adopted a particularly ungenerous interpretation of Texas' so-called "junk science writ" (Code of Criminal Procedure 11.073) to say that habeas challenges may only confront junk science used in the guilt/innocence phase of a conviction, not in the sentencing phase.As a practical matter, this mainly excludes use of the writ to challenge evidence in the sentencing phase of capital cases, where "special issues" supporting the death penalty must be proven "beyond a reasonable doubt" just like with the adjudication of guilt.Having been involved with the early drafting of the statute in question back when I was Policy Director at the Innocence Project of Texas, Grits must admit that nobody on either side of the negotiations ever contemplated this issue and I'd never considered it before this case came up.(The capital folks weren't much involved with the original bill and, in truth, if they'd been its big promoters, it would have been unlikely to pass.) I can also say for certain that nobody involved in the negotiations was operating under the assumptions Judge Keller hypothesized based on the court's DNA testing jurisprudence. Because, as a practical matter, the Lege expressed no "intent" one way or another, I suppose the CCA judges get to do what they want.And habeas can challenge both guilt/innocence and sentencing issues.

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Judge Richardson authored a concurrence, joined by Newell and Hervey, to say this was a "harsh result" and arguing that the Lege should expand access to the writ to include the sentencing phase.

Judge Alcala wrote another despair-tinged dissent, joined by Judges Meyers and Johnson.

For most other felonies, the judge or jury may choose from a range of sentences without facing additional layers of proof.

Judge Keller's majority opinion carried six members of the court.

So they could pick whatever outcome they wanted, and each of them did.

For my part, in retrospect, the reason this never occurred to me is that we were amending the habeas corpus statute, which generally challenges convictions from long ago for which all the inmates' direct appeals have been exhausted.

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