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Submitted by john wertz on 2020-01-06 03:02:01

Thank you again for your interest in the candidates running for the Court of Criminal Appeals (CCA) in 2020, especially the race between Judge Richardson and Gina Parker.

First, do I have a dog in the hunt? I was appointed to the CCA in 2001 by Governor Perry, and he took Supreme Court Justices Wallace Jefferson, Xavier Rodriguez, and me on a one-day flying campaign tour of Texas cities in early 2002. After winning my first election until my retirement in 2014, I had cordial, but distant, relations with the governor’s office. I had never met Judge Richardson until my retirement party in December, 2014, which was after he had won election to the CCA, but I had heard many positive comments about him throughout my tenure. He was on a national judicial-scientific committee with one judge on the CCA and was friends with another. My husband and I had lunch one time with Judge Richardson and his wife at another judge’s home after I retired, but we have no other social relationship. I had never heard of Gina Parker until visiting her website two weeks ago.

I enthusiastically endorse Judge Richardson for re-election because of his judicial character, his commitment to the rule of law, and his well-written, well-reasoned judicial opinions.

Although I am no longer on the CCA, I still have a number of friends who work at the Court, and they are impressed with Judge Richardson’s calm, reasonable demeanor, his thoughtful treatment of both colleagues and staff members, and his respectful treatment of the lawyers who appear before the CCA. You may watch some of the recent oral arguments (http://www.texasbarcle.com/CLE/CCA.asp) to make your own assessment of his questioning. Judge Richardson has the quintessential judicial demeanor: calm, reflective, cooperative, willing to listen to others, capable of bringing coalitions together, and adding a spark of humor at the right moment to deflect contentiousness. If you have read any books about the U.S. Supreme Court and the justices (especially Chief Justice John Marshall), you can appreciate how important social skills are to success on an appellate court.

Most important, however, is an appellate judge’s written product– his judicial opinions. That is what defines him and will live after him in law books for years to come. Judge Richardson’s opinions are clear, concise, and reflect his commonsensical conservatism. The average person can read those opinions and understand what the law is and how it applies to the specific case at hand. The greatest compliment an appellate judge can receive is that the majority of other judges, lawyers, and citizens say, “I may not always agree with your result, but I understand your argument and appreciate your reasoning process and why you reached your result.” As Chief Justice Roberts said, there are not Trump judges or Obama judges. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for." He understands that the citizens will lose all trust in the judicial branch if judges are seen as partisan politicians or political hacks who will always rule for one group or another or are even predisposed toward one side or another. Judges rise or fall on their reputation for evenhandedness and fairness to all parties Judge Richardson enjoys that reputation. That is why he was appointed as the visiting judge in State v. Perry.

Before addressing Judge Richardson’s rulings in that case, let me briefly outline its procedure. A group called Texans for Public Justice filed a complaint concerning Governor Perry’s veto threat of funding for the Public Integrity Unit at the Travis County D.A.’s Office. The D.A.’s Office and the local trial judges recused themselves so the Administrative Judge for the Third Region (which includes Travis County), was required to appoint a visiting judge–one who would be seen as apolitical, uninvolved, above-the-fray, and perceived as fairminded to the prosecution and the defense. It is both an honor and a heavy burden to be asked to serve as the visiting judge in a political case, as it is a testament to the integrity of the one chosen, but inevitably both sides will loudly criticize that judge over every adverse ruling.

The Administrative Judge appointed Republican Judge Richardson (who was originally appointed to the bench by Governor Bush and served for ten years before being defeated in the 2008 Democrat-sweep of Bexar County; thereafter he served as a visiting judge) to oversee the complaint. Judge Richardson appointed a San Antonio attorney and former federal prosecutor as special prosecutor. The special prosecutor presented evidence to the grand jury which then met in secret and decided to return an indictment charging (1) abuse of official capacity, and (2) coercion of a public servant. Judge Richardson had no hand in that act. No one may interfere with those secret grand jury deliberations. No trial judge, including Judge Richardson, can “dismiss the claim” before a grand jury decides to indict. That would be unethical and illegal tampering with the grand jury.

Judge Richardson, a long-time Republican who was then running for the CCA, conducted various trial court proceedings, but in January of 2015, he denied Governor Perry’s motion to quash the two charges, concluding that the defense did not “challenge the sufficiency of the indictment.”

There were two main issues on appeal: (1) Whether a defendant may challenge the constitutionality of a statute (here the abuse of official capacity law) as it applies specifically to him in a pretrial motion, and (2) whether the coercion of a public servant statute violated the First Amendment and was vague and overbroad.

The Third Court of Appeals (all Republican judges) unanimously agreed that a defendant may not make an “as applied” challenge to the constitutionality of a statute in a pretrial setting because that requires a mini-trial before the real trial. It requires both the prosecution and defense to offer some trial evidence to the judge before the real trial. It’s like a tryout on the road to Broadway. But the procedural law has long been clear in Texas. We don’t have tryouts in criminal cases. We have one real trial held before one real jury. The court of appeals cited numerous “binding” opinions by the CCA to support its conclusion affirming Judge Richardson’s ruling.

The Court of Appeals then unanimously agreed that the coercion of a public servant statute (which was the second charge) was facially unconstitutional because its definition of “coercion” was vague and violated the First Amendment. Governor Perry’s argument was a good one, though trial and intermediate appellate courts very rarely hold that a statute duly enacted by the Legislature is unconstitutional. Such a ruling is frequently considered a slap in the face to the representatives of the public who have seriously considered, debated, written, and enacted criminal statutes. It is an extraordinary act for a single trial judge to declare a legislatively enacted statute unconstitutional and therefore void. I can think of only one recent example of that, and it occurred in Montgomery County when a visiting judge ruled that the conspiracy provision of the Open Meetings Act was unconstitutional under the same reasoning as that in Ex parte Perry.

On appeal to the CCA, Governor Perry again argued that a trial court may sometimes address an “as applied” to-this-case constitutional challenge before the jury trial. Trial courts and courts of appeal do not have the right to disregard or overturn binding precedent from a higher court such as the CCA. But the CCA, like the U.S. Supreme Court, does have the right to change its mind and overrule prior precedent. In Ex parte Richard “Rick” Perry, the CCA did not say that it was overruling its own precedent, but it reasoned that it could address this particular constitutional challenge, in part, because the consequences of mere indictment are so consequential to a political figure. The court explained:

We must recognize that the mere issuance of an indictment has a profound impact on the accused, whether he be in public life or not. Particularly for a member of Congress, however, publicity will be widespread and devastating. Should an election intervene before a trial at which he is found innocent, the damage will have been done, and in all likelihood the seat lost. Even if the matter is resolved before an election, the stigma lingers and may well spell the end to a political career.

For those of us who have represented political figures, this explanation certainly rings true. But it is also true for corporations, e.g., Arthur Anderson (the accounting firm caught up in the Enron scandal), and other people, such as Hollywood figures, or any other well known public figure. At any rate, the CCA had every right to overrule, or at least carve out an exception to, its normal jurisprudence of not addressing “as applied” constitutional challenges pretrial and it did so in this case. Unlike the trial or intermediate courts, it is not bound by its prior precedents.

In its opinion (decided 6-2; Judge Richardson, of course, recused himself), the CCA, concluded that it, unlike the lower courts, could address the constitutionality of the abuse of official capacity statute. It held that the exercise of an otherwise valid gubernatorial “veto” under that statute cannot constitutionally be criminalized under the Separation-of-Powers Doctrine. That is, if the governor has a right to veto a particular piece of legislation, it does not matter what his motive might be– that otherwise valid act cannot be the basis for a criminal prosecution. Although one might differ with that conclusion, it is certainly a legitimate and reasonable one, and indeed one that Judge Richardson might have agreed with had he thought he had jurisdiction to rule on the question. We do not know what he thought about it because he followed precedent and did not address the merits in a pretrial hearing.

The CCA also upheld the Court of Appeals’ decision concerning the facial unconstitutionality of the coercion of a public servant statute, noting that “public servants have a First Amendment right to engage in expression, even threats, regarding their official duties.” Once again, it is entirely possible that Judge Richardson might agree with this conclusion, but that he, as a judicially conservative trial judge, would not reach out, all by himself, to declare a legislatively enacted statute unconstitutional and void.

Conservatives tend to be humble judges who avoid making law from the bench; their role is to uphold the law and to follow and apply the legislatively enacted statutes. They avoid constitutional questions whenever possible and do not create new constitutional rights that have not been enacted into statutes by the legislature, the separate branch that is elected to make law. Judicial activists tend to be those who frequently discover new constitutional rights to overturn statutory law. But one cannot deny that it frequently depends on whose ox is being gored as to whether one is called a judicial activist or conservative.

All of the above is not to say that the majority’s reasoning and conclusions in the Perry case were obvious, simple, or necessarily correct in some absolute sense. As one of the two dissenting opinions noted,

The opinion of the Court stretches constitution, case law, and statute beyond where I am willing to follow. This case does not involve separation of powers, many of the examples set out are inapposite, and the language used as to appellant differs from all other writ opinions.

No matter how one comes down on the Perry case, it is but one case and hardly a litmus test as the pertinent reasoning and law is far from clear and will probably never be repeated. What matters in the long run is judicial character, temperament, and carefully crafted judicial opinions that will stand up over the course of time. That is why I endorse Judge Richardson for re-election to the Court of Criminal Appeals.

Sincerely, Cathy Cochran