The Texas Court of Criminal Appeals is about to get hit by a deluge of post-conviction claims that “junk” science was used to convict the innocent. It could hear as many as 50,000 post-conviction cases involving the improper handling of “mixed DNA” alone.
So how it will dole out justice in such high-stakes matters is expected draw scrutiny, especially among its most vocal critics, including some new office-seekers, who say the court has been inflexible over the years.
In the statewide primary, nine candidates, including one incumbent, say they are ready for the daunting task.
March 1 office-seekers are hoping to win the Republican nomination for Place 2, 5 and 6. Place 5 Judge Cheryl Johnson since 1998 is not seeking another term, so at least one new face is expected to join the court in 2017.
In Place 5, 226th Criminal State District Judge Sid Harle is one of four candidates vying for the Republican nomination. Others are former State Supreme Court Justice Steve Smith, Fort Worth criminal defense attorney Scott Walker and Brent Webster, an assistant district attorney in Williamson County.
The winner of a three-way race for Place 2 will face Justice Lawrence Meyers of Fort Worth in the November election. The candidates are Mary Lou Keel, judge of the 232nd District Court in Harris County; Chris Oldner, the judge of Texas District Court 416, and Ray Wheless, judge of the 366th District Court in Collin County.
Place 2 Judge Lawrence Meyers is the longest-serving jurist on the court. He switched parties in November 2014 to become the only statewide Democrat officeholder.
The three-way race includes Mary Lou Keel, 55, who has a 21-year history as a felony trial court judge. Keel said she has presided over more than 20 capital murder cases. In at least five of those cases, a jury assessed the death penalty, she said.
“It would be tragedy to put somebody on our highest criminal court who has no experience with the most serious and technically challenging issues,” Keel said.
The role of the appellate jurist “is a very nerdy endeavor,” Keel said. “There’s a lot of legal research and writing. So the best qualified candidate should have at least a demonstrated aptitude for that kind of work. And I have done much of it.”
Candidate Chris Oldner, 48, judge of the 416th Judicial District Court, lives in McKinney. Oldner said the current court has projected a “dismissive” attitude over the years, which has distracted it from its core mission: to uphold justice.
“This court has somewhat earned a reputation for not fully, clearly and consistently addressing complaints that people have who have been convicted of crimes,” Oldner said.
If elected, he said, he would apply “a fearless integrity” to decisions. “I have the knowledge and background to do the job well and also have the background to stand up and do what’s right.”
Ray Wheless, 63, a judge from Collin County, said he is running to ensure that the court is made up of judges who are impartial.
“We need judges on that court who will fairly apply the law, uphold the Constitution and protect the rights of Texas citizens,” Wheless said.
A key role of the court, he pointed out, is to review applications from defendants who are seeking new trials because of claims that they have been wrongfully convicted. He said he would be thorough with such cases.
“It’s a particular concern of mine and the biggest miscarriage of justice whenever the wrong person is in prison,” Wheless said. “Any jurist can get elected to this court and rubber-stamp the conviction in these cases where the evidence is overwhelming.”
All four candidates seeking Place 5 claim they would bring a “conservative” judicial philosophy to the court.
In Place 5, Bexar County State District Judge Sid Harle, 59, said he has already played the role of “gatekeeper” on criminal cases in which certain forensic techniques have been questioned.
“This is a position that I am uniquely qualified for,” Harle said. “There will be no learning curve when elected.”
Harle in December 2011 acquitted Michael Morton, who had gone to prison in 1987 on a charge of beating his wife to death. Morton, Harle said, was convicted based on “junk science.” As a result, a few years ago, Texas passed the Michael Morton Act into law, which requires a more open discovery process in court proceedings.
“I was personally offended by the junk science in the Morton case,” Harle said. He said the court will be faced with similar cases of “junk science.” As a felony trial judge, “I’ve got fingerprint examiners changing their testimony who said it [fingerprint analysis] was gospel for years.”
Attorney Steve Smith, 54, a former Texas Supreme Court justice, said he believes he is a “proven conservative” and some of his opponents don’t necessarily fit the bill.
“I entered the race to ensure that Republican primary voters had a proven conservative choice in the race” for Criminal Court of Appeals Place 5. The court, he said, has veered from a far-right stance.
“The balance between moderate Republicans and conservative Republicans has shifted, and it’s important that a proven conservative take this spot,” Smith said.
He wants to see a merger between the state’s two highest courts — the Court of Criminal Appeals and the State Supreme Court — to improve efficiency and make high court justices more accountable to the public, he said.
Scott Walker, 62, a longtime Fort Worth criminal defense attorney, also said he is a conservative. He says he’s got the experience to sift through difficult and technical cases heard on the court because of his criminal trial experience, which has included capital punishment cases.
Texas has a lot of work to do to ensure a fair and balanced court system, Walker said.
“I think we’re still getting there,” Walker said. “I know there are still things that go on that shouldn’t be going on. There are still some prosecutors who think getting convictions is more important than seeing justice done. We’re still not there as far as that is concerned.”
Brent Webster, 35, an assistant district attorney in Williamson County, said he has been endorsed by conservative groups, including Texans for Fiscal Responsibility, throughout the state. That makes him the most viable candidate for the job.
“I am a constitutional conservative,” Webster said. “Deciding on the big picture about what’s best for the state of Texas, that’s when your judicial philosophy is more important than how many plea bargains you’ve processed.”
He has handled many cases, from misdemeanors to murder, he said. In his county alone, there are more than 300 cases in need of review because of questionable forensic evidence.
“It’s a major problem for the state of Texas,” Webster said. “We have to go back and look at those to determine if these cases were decided correctly. … It’s going to cost a lot of money, but it has to be done because those people might be innocent.”
Judge Michael Keasler, 73, is seeking a fourth term.
“I enjoy the work,” Keasler said. “I look forward to going to work every day. It is intellectually challenging and constantly interesting.”
Keasler said he brings “institutional memory” to the court. The judge, a former Dallas County prosecutor, has taught a national ethics course and other training for appellate judges and others.
Keasler said the court is “trying to get in front of” cases in which improper protocols were used to test mixed samples of DNA. Inmates whose cases might need further scrutiny are being notified by a number of different justice groups, and the court is intent on being thorough with those cases involving mixed DNA, he said.
“It’s going to be a major issue, and I think we’re doing a pretty good job,” Keasler said. “We’re doing some stuff that really is not being done in any other state.”
Richard Davis, 57, a general law attorney from Marble Falls who ran unsuccessfully for Place 4 on the court a few years ago, believes the court has been inflexible and unfair to defendants.
“This kind of court needs a balance of perspectives,” Davis said. “I can bring a different view.”
As a judge, he said he would practice fairness.
“I would no longer be an advocate for any side,” prosecution or defense, Davis said. “I would do what the Constitution requires. Our U.S. Constitution is built on the premise of due process, and fundamental fairness is essential to the public’s confidence in their court system.”