Caveats to debate on merging Texas Supreme Court, Court of Criminal Appeals

The Texas Tribune quoted Grits this morning in a story about proposed legislation to merge Texas' Court of Criminal Appeals with the Texas Supreme Court, comporting with both the the national model and the practice in 48 other states. ("Texas and Oklahoma are the only two states with their highest courts divided between civil and criminal jurisdictions.") Toward the end of the article, Maurice Chammah paraphrased Grits' views to say, "Henson argues that lawyers with a civil background would bring a fresh approach to criminal cases. They would approach forensic science debates with the standards of civil law, which he says are more strict."

That slightly misstates what I said to him (or at least, what I thought I said), so let me iterate my stance here: Grits does not fantasize that judges with a civil background have any superior ability compared to criminal court judges when it comes to evaluating the science behind forensic disciplines, nor do I think they bring any "fresh approach" to the subject. Rather, I told Mr. Chammah that there would be a benefit from having the same court interpreting the law consistently in both the civil and criminal realms, citing divergent standards on admissible science as one example. In theory, the same US Supreme Court standard - Daubert v. Dow Pharmaceuticals - governs the admission of scientific and expert evidence in both criminal and civil law, I reminded him. But, in large part because of superior resources available to the litigants as well as historical deference to unproven but longstanding disciplines, the standards which have evolved on the civil side tend to be stricter than those applied to criminal-side forensics. (Similarly, it would be useful to have the same courts passing judgment over juvenile and adult criminal law: Right now the Supreme Court handles the juvie side while the Court of Criminal Appeals oversees cases with defendants 17 or older.)

It would be particularly helpful to have a unified court interpreting scientific issues at this historical juncture because of the array of questions facing forensic disciplines in the wake of the 2009 National Academy of Sciences report on the forensic sciences. That historic document, which has been discussed frequently on Grits, raised questions about the scientific validity of numerous disciplines that were based on subjective comparisons as opposed to "science" as in, supportable by the scientific method. I suggested to him that, as the courts and scientists sort those issues out - a process which could easily take two decades or more! - it would make sense to have the same standards interpreted consistently across the board instead of maintaining separate standards for forensics in criminal cases.

One other quibble: Chammah allows the director of the Texas Supreme Court Historical Society to portray the reason the Court of Criminal Appeals was created as an effort merely to better manage a "backlog." In reality, the Texas Constitution of 1876 was a revanchist document: The fruition of a resurgence of state power by segregationist, mostly ex-Confederate Democrats after a decade under Union-run Reconstruction. It was a first volley on behalf of Jim Crow, featuring most prominently the institution of a poll tax and the creation of separate schools for black children. For context: Following the civil war, military authorities had infamously ousted the chief justice and several sitting associate justices on the Texas Supreme Court, calling them "impediments to reconstruction," and installed replacements sympathetic to "radical Republicanism" (which may be read in the modern context as a euphemism for racial equality). The subsequent creation of a separate court for criminal cases gave Texas Democrats a means to bypass the reconstruction court and what they viewed as its odious precedents, an impression reinforced by the decision to give the CCA's predecessor sole authority to grant writs of habeas corpus, which at the time would have been chiefly considered in the context of the recent imposition of martial law. So if a "backlog" was a fig leaf rationale for creating the court, it is also true that a court unburdened by Reconstruction-era military appointees and their precedents could more easily facilitate the use of criminal law for enforcing the Jim Crow regimen whose foundations were laid in the 1876 Texas Constitution.

The other quotes from me were fairly portrayed, but the paraphrase I thought deserved clarification, and the (revisionist?) history an airing. See the full story, which Grits recommends with the above caveats.