5th Circuit Court of Appeals
In re Lucas Babin
No. 22-40306 5/25/22
Issue:
Can a federal appeals court issue a writ of mandamus to prevent production of grand jury materials for in camera inspection by a federal district court?
Holding:
No. The 5th Circuit rejected the argument that the discovery order would cause the prosecutor seeking mandamus relief to violate his duty of non-disclosure of grand jury matters under Code of Criminal Procedure Article 20A.204. “We have been cited to no caselaw that a state district attorney’s complying with a federal court order to provide certain grand jury materials would violate state law, leaving this district attorney without a ‘clear and indisputable’ right to our court prohibiting such disclosure.” Read opinion.
Commentary:
This is a mandamus action, and the first thing that anyone should remember about seeking mandamus relief is that it is very hard to get. Similar to the rule in state criminal court, a federal court petitioner must show that he has a “clear and indisputable right” to relief. That is always a very difficult burden. This case is based upon what was a prosecution of Netflix under §43.262 of the Penal Code and is now a prosecution under §43.25(d). The decision is very fact-bound and should probably not scare prosecutors that defendants will be seeking relief against state-court prosecution in federal court. Something called the Younger abstention doctrine would probably prevent that, and that doctrine may yet prevent the federal-court involvement in this case. What apparently triggered the federal court’s desire to look into the state grand jury proceedings was—in part—the petitioner’s reliance upon something called the “independent intermediary” doctrine. All of this should encourage a prosecutor to have access to someone (or a group of someones) who practice federal law on a regular basis. Don’t go into these waters without help.
Texas Supreme Court
City of Fort Worth v. Pridgen and Keyes
No. 20-0700 5/27/22
Issue:
Is an opinion statement that a fellow police officer has broken the law a “report” that invokes protection for the reporting officers under the Texas Whistleblower Act?
Holding:
No. A qualifying report under the Whistleblower Act (Government Code Chapter 554) must expose, corroborate, or otherwise provide information pertinent to identifying or investigating governmental illegality. Information provided by conclusory statements or recommendations is not protected by the Act. Therefore, the city was entitled to immunity from suit by the reporting officers. Read opinion.
Concurrence (Blacklock, J.):
The concurrence agreed with the majority’s conclusion about whether the officers’ statements qualified as a report under the Whistleblower Act. “I disagree, however, with the Court’s rejection of the city’s other arguments about the Act’s requirements. If ‘an employee must convey information, not just conclusions,’ and if the plaintiffs did not satisfy this requirement, then the case is over, and the Court need not opine on the validity of the city’s other arguments.” Read concurrence.
Dissent (Boyd, J.):
“Perhaps the Whistleblower Act should limit qualifying reports to exclude reports like those made here. But it doesn’t. And because I don’t believe this Court has authority to amend the statute to impose such limitations, I generally agree with the court of appeals.” Read dissent.
Commentary:
This case centers around the investigation of a leak of previously undisclosed information regarding an allegedly illegal arrest. The plaintiff-officers made what they deemed to be a “report” of their conclusions regarding that allegedly illegal arrest based upon information that was already known. The key question that was decided in this case is that such a “report” of “conclusions” or “opinions” is not enough to be covered by the Whistleblower Act. As criticized by Justice Blacklock’s concurring opinion, the court also answered two other questions that may be of use in future cases involving the Act. The court held that “reporting” does not mean “disclosure”—that is, the provision of new information. Therefore, a “report” can be the corroboration of facts already previously disclosed (but it must be facts or “information” and not just “conclusions” or “opinions”). The court also held that “reporting” can come from someone doing his job, not necessarily just from someone reporting outside the targeted entity’s structure. Thus, a “report” could come from something like an internal affairs investigation or an inspector general’s report.
Texas Courts of Appeals
Ledford v. State
No. 01-19-00967-CR 5/26/22
Issue:
Can a defendant raise the issue of disparate treatment of veniremembers of different races under Batson when he did not offer any objection or evidence during the Batson hearing to rebut the State’s proffered race-neutral reasons?
Holding:
No. Under the third prong of Batson, a defendant must prove purposeful discrimination at a Batson hearing once the prosecutor has offered race-neutral reasons for disputed peremptory strikes. Relying on jury biographical forms that were not admitted at the Batson hearing is insufficient for the defense to establish the State’s purposeful discrimination. Read opinion.
Concurrence (Landau, J. joined by Countiss, J.):
“Despite a timely and specific objection to the State’s striking of two of three African American members of the venire based on race, the majority concludes that the defense waived its challenge because it did not rebut the State’s proffered race-neutral explanation of its strikes. Because this Court has previously held that such a rebuttal is required, we are constrained to join the Court’s opinion finding that Ledford waived his objection. But because (1) Batson does not require a rebuttal to preserve error and (2) the fundamental nature of the right militates against creating a hurdle to jury participation, this Court should revisit its opinion in Adair v. State, 336 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d), en banc to right its Batson jurisprudence.” Read concurrence.
Commentary:
In this case, the defense made no response at all to the trial prosecutors’ racially neutral explanations for the exercise of the two peremptory challenges. The Court of Criminal Appeals has held that the defense can raise a disparate-treatment argument for the first time on appeal, which is what the defense did in this case. But the defense relied upon juror biographical forms that were not presented to the trial judge or otherwise introduced into evidence. Whether that can be done may be decided by the court of appeals on a motion for rehearing (as invited by the concurring opinion), and it may also be decided by the Court of Criminal Appeals. Stay tuned.
Harris v. State
No. 01-20-00140-CR 5/26/22
Issue:
Did a judge’s failure to answer a question from the jury (“Does the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense?”) cause the defendant egregious harm?
Holding:
Yes. The judge could have simply answered the question by saying “No.” The judge’s refusal to answer the jury’s question “left the jury on its own to make sense of the law governing self-defense, which was the pivotal disputed issue at trial.” Read opinion.
Concurrence (Farris, J.):
“When it is undisputed that a defendant is engaged in criminal activity at the time of a shooting, the presumption of reasonableness does not apply. The trial court erred by including the presumption of reasonableness in the jury instructions in this case. The court then compounded its error by refusing to answer the jury’s question during deliberations with a clarifying instruction to eliminate the confusion caused by including the presumption in the jury charge.” Read concurrence.
Dissent (Radack, C.J.):
“Because I believe that the trial court properly refused to submit a non-statutory jury instruction that was already in the charge and would have been a comment on the evidence, I respectfully dissent.” Read dissent.
Commentary:
This case should—and probably will—be reviewed by the Court of Criminal Appeals, not necessarily because the majority opinion is wrong, but because the law needs to be clarified as to when and how a trial judge should answer a jury’s question regarding the jury charge itself. In this case, the trial judge refused to tell the jurors that the defendant’s commission of (another) crime at the time that he committed the charged offense did not negate his right to use self-defense. The majority found that, based upon this refusal, the jury could have found that the defendant’s criminal activity negated his claim of self-defense. No portion of the trial court’s charge to the jury informed the jurors of this conclusion. Keep a watch over this case.
Ex parte Medrano
No. 08-21-00016-CR 5/26/22
Issue:
Does Code of Criminal Procedure Article 11.072 require a trial court to hold an evidentiary hearing before rendering a decision?
Holding:
No. Although the trial court entered findings of fact and conclusions of law, Article 11.072 does not require it to hold a hearing before doing so. Read opinion.
Commentary:
Nothing in Article 11.072 requires a hearing. In fact, §6(b) of the statute allows for many different ways of giving the trial court facts upon which to make a decision (only one of which is a hearing). The trial court (and the court of appeals) rejected the defendant’s claim based upon laches, and there was no need to have a hearing to decide whether laches applied to defeat the defendant’s claim.
TDCAA Research Attorney
TDCAA is seeking applicants for our entry-level research attorney position. This is a two-year position modeled upon judicial clerkships. The annual salary is $55,000 and also includes health plus benefits.
Basic Job Description
The research attorney’s primary responsibilities are to:
- research and respond to requests for legal assistance from prosecutors across the state; and
- generate, distribute, and archive the association’s weekly case summary emails.
In addition, the research attorney may be asked to:
- post updates to the TDCAA website;
- monitor and administrate TDCAA’s online discussion forums;
- write and edit articles for inclusion in TDCAA publications;
- present topics for MCLE credit at TDCAA conferences;
- respond to inquiries from non-member judges, law enforcement officers, legislators, or similar officials; and
- perform various other duties suitable for an entry-level position in a small law office.
Requirements
Applicants must:
- demonstrate an interest in prosecution as a profession;
- be a recent (within the last year) graduate of an accredited law school with a J.D. or equivalent degree; and
- either be:
- licensed to practice law in Texas and be in good standing with the State Bar; or
- awaiting results from taking the most recent Texas bar exam; or
- studying to take the next regularly scheduled Texas bar exam.
Applicants should:
- be proficient in electronic legal research (such as Lexis/Nexis);
- be able to manage a considerable load of active research projects and consistently satisfy deadlines in the face of competing time demands;
- possess superior communications skills for dealing with co-workers, association members, and the general public in a professional and courteous manner;
- be prepared to submit to a background investigation or drug test, including a review of any criminal history information in the applicant’s past;
- be willing to commit to employment at TDCAA through October 2023 before seeking subsequent employment elsewhere; and
- not have any significant prior experience as a prosecutor or criminal defense attorney.
Interested candidates should email a letter of interest and resume in PDF format to Senior Staff Attorney Diane Beckham.