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Yow:

Pena v. State (Tex. Ct. App. May 2), holds that the Texas Constitution provides defendants with more rights to relief than the U.S. Constitution in cases where the prosecution had inadvertently destroyed evidence. Here are a few sentences from the opening two paragraphs of Chief Justice Gray's dissenting opinion (some citations omitted):

"As a dog returns to its vomit, so a fool repeats his folly." Proverbs 26:11. As the majority did in 2005, the majority again reverses Pena's conviction, and holds that the trial court erred in overruling Pena's objections to the testimony of Texas Department of Public Safety criminologist Charles Mott and related evidence without giving a jury instruction unknown to Texas law.... Pena's brief on remand adds nothing, but merely regurgitates the majority's analysis in Pena I....

The majority's opinion glosses over two properly dispositive parts of the analysis, namely preservation of error and harm, in less than a page each, in order to publish its thirty-six page, mediocre law-review article on the merits of Pena's issues under the Texas Constitution....

The majority responds, in footnote 27: "In reading the dissenting opinion's selection from the Scriptures, we are reminded of the recent observation of the Court of Criminal Appeals: 'First, the statement is unnecessary; it contributes nothing to the legal issue before us. Second, and most importantly, it is highly unprofessional. When a judge chastises other members of the judiciary in this manner, it not only reflects poorly on the judge, it undermines the integrity of the justice system. The words of Supreme Court Justice Kennedy are particularly appropriate here: 'The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse. Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.' If public respect for the judiciary is to be maintained, it must begin from within.'"

What's going on there in Waco?

Anderson (mail) (www):
The majority responds in its final endnote, quoting an earlier op:

First, the statement is unnecessary; it contributes nothing to the legal issue before us. Second, and most importantly, it is highly unprofessional. When a judge chastises other members of the judiciary in this manner, it not only reflects poorly on the judge, it undermines the integrity of the justice system. The words of Supreme Court Justice Kennedy are particularly appropriate here:

"The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse. Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.

"If public respect for the judiciary is to be maintained, it must begin from within."
5.9.2007 3:54pm
PersonFromPorlock:

Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.' If public respect for the judiciary is to be maintained, it must begin from within.'"

What's going on there in Waco?

Well, for starters they seem to be confusing 'reputation' and 'character'.
5.9.2007 3:55pm
Anderson (mail) (www):
(How did I miss EV quoting that? Attention Deficit Disorder, I guess. Please strike this &previous comment, if you get the notion.)
5.9.2007 3:58pm
Steve:
I missed it too. I think EV missed a tag and had to edit the post or something.
5.9.2007 4:05pm
David M. Nieporent (www):
Is there a reason that they spell it "marihuana"?
5.9.2007 4:23pm
Casual Peruser:
Clearly someone's jealous of all the attention the Michigan Supreme Court has been getting...
5.9.2007 4:23pm
Dave N (mail):
And I thought Judge Bea was harsh in his dissent in Plumlee v. Del Papa.

However, his is mild in comparison.
5.9.2007 4:36pm
Law Student in Texas (mail):
For more fun from the 10th COA I draw your attention to Chief Justice Grey's dissent in The City of Waco v. Kelley.

His opinion starts off with:

Prologue

Dear City of Waco,

Congratulations, you have prevailed on your legal argument that the hearing examiner's judgment reducing Kelley's indefinite suspension to only 180 days and demoting him to sergeant was not authorized. Because you prevailed, he is not demoted and you have to take him back as a commander. You were victorious in this battle, so you lost the war.

Sincerely,

A majority of the Justices on the Tenth Court of Appeals

His opinion ends with:

Epilogue

Dear City of Waco,

Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas.[2] I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any. Good luck on your trip to Austin.

Sincerely,

The dissenting Chief Justice

TOM GRAY
Chief Justice

His footnote 2 goes on to list every case from the year 2006 which was reversed by the Texas Supreme Court or the Texas Court of Criminal Appeals. He further goes on to list the cases from 2007 which had been reversed to date. The majority opinion, in a footnote, responds to the CJ in similar language to what EV posted above.
5.9.2007 4:42pm
rbj:
'Is there a reason that they spell it "marihuana"?'

Marihuana is an alternative spelling, though it is a bit old-fashioned; mostly seen in older statutes and, IIRC, in Reefer Madness.

(The reason I may not recall correctly is left as an exercise to the reader)
5.9.2007 4:55pm
David M. Nieporent (www):
I know it's an alternative spelling, but it's hardly a common one nowadays; that's why I was wondering.
5.9.2007 5:00pm
Houston Lawyer:
The majority uses the "h" spelling, while the dissent uses the "j". The dissenter probably also could recognize the plants in the photo of the evidence which was not destroyed.
5.9.2007 5:10pm
Eugene Volokh (www):
Anderson: Sorry, my fault -- I added that paragraph very shortly after the original post; you didn't see it because it wasn't there when you first looked.
5.9.2007 5:28pm
Bobbie (mail):
(1) I believe Texas spells it "marihuana" in statutes, so most courts follow suit. (I once wrote a brief to a Texas appellate court spelling it with the "j" and my boss changed the spelling and gave me that reason.)

(2) The Texas Court of Criminal Appeals will, no doubt, reverse any moderately pro-defendant ruling so I suspect this one won't last long. There's historical evidence suggesting that the Texas Constitution gives more protection to criminal defendants in certain situations than the U.S. Constitution. I once drafted a brief making this point. I probably spent 10 of my 20 pages on the argument. The court rejected my U.S. constitutional claim and never even bothered to address my state constitution claim. Texas courts have a history of doing that. You can find a number of reverse and remands from the Texas high courts ordering the lower courts to actually rule on state constitutional claims after the lower courts simply ignored them.
5.9.2007 5:54pm
Allan:
Perhaps we can conclude that this situtation is predictable when judges are elected based on popularity as opposed to appointed based on merit (in theory).

Given Waco is the home to Baylor and is located near Bush's ranch, one might assume that all of the judges are Republicans. But, then again, maybe not.
5.9.2007 5:59pm
ed in texas (mail):
"What's going on there in Waco?"

Well, I can point out that there's two ways to pronounce that name... one has a 'K' in it.
5.9.2007 6:23pm
Anderson (mail) (www):
I added that paragraph very shortly after the original post; you didn't see it because it wasn't there when you first looked.

Whew -- not proof that I'm *not* stupid, but at least, not proof to the contrary, either.

Whatever the merits of Gray's dissent, he does not serve his argument well by being a jerk.
5.9.2007 6:44pm
Antinome (www):
Gray and Reyna are Republicans, Vance is a Democrat.
5.9.2007 6:55pm
Fub:
Houston Lawyer wrote at 5.9.2007 4:10pm:
The majority uses the "h" spelling, while the dissent uses the "j". The dissenter probably also could recognize the plants in the photo of the evidence which was not destroyed.
It looks to me like the dissent also uses the "h" spelling, except when quoting cases or transcript that use the "j" spelling.

Frex, from dissent, FN7: "[7] I note that Pena's possession of more than fifty pounds of marihuana could probably have been successfully prosecuted as delivery of marihuana, a first-degree felony. ..."

Or maybe he's a switch hitter.
5.9.2007 8:20pm
arbitraryaardvark (mail) (www):
Chapter 29 of the Magna Carta of 1225 provided:
No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Looks like a typo in the majority opinion: that's section 39, not 29, if I'm remembering the Magna Carta right.
5.10.2007 8:59am
Public_Defender (mail):
The problem is that some judges manipulate the rules of waiver to avoid finding error.

Here, the trial lawyer made an objection and cited the appropriate constitutional provisions. That should have been enough. Contrary to Chief Justice Gray's allegation, citing the constitutions of Texas and the US is citing authority.

Trial lawyers don't have to file memos for each objection, and trial judges don't have to write opinions for each objection. Chief Justice Gray's rule would grind trials to a screeching halt.
5.10.2007 5:20pm