TULIA 35 ESCAPE HIGH COURT HORROR

AMARILLO LAWYER Jeff Blackburn didn't ask Rick Perry to pardon the Tulia
35, but he's delighted the governor did.

It means his clients, having been victimized by a bottom feeder of the
Texas law enforcement establishment, wouldn't face being victimized by
those at its top.

Most Texans, including Perry, are appalled at the fact that dozens of
citizens were sent to prison based on little more than the testimony of an
apparently lying undercover agent with a sleazy history.

But Blackburn was concerned that the Texas Court of Criminal Appeals, the
state's highest court for criminal matters, does not reflect the
tough-but-fair sensibilities of most Texans. And his cases were before that
court when the pardons made his appeals moot.

He was worried the high court would find a way to uphold the convictions
despite the fact that the undercover agent has been indicted for perjury in
connection with his testimony.

"I won't speak with a flannel mouth," he said as he warmed to the topic of
the Court of Criminal Appeals. "They're so far gone they're barely even a
court anymore."

While his rhetoric may be stronger than that of most lawyers, his concerns
aren't. Consider this brief compendium:

U.S. District Judge Orlando Garcia accused the court of "a cynical and
reprehensible attempt to expedite (a defendant's) execution at the expense
of all semblance of fairness and integrity."

It seems the high court, charged by the Legislature with hiring "competent
counsel" in indigency cases for death penalty appeals, gave the defendant
in question a lawyer with all of three years of experience who had never
worked on a death penalty case.

The lawyer failed to follow the rules in filing appeals, and the court
turned him down. When later lawyers tried to clean up the mess, the court
said sorry, he had his chance.

U.S. District Judge Sam Sparks of Austin, ruling on another death penalty
case, said the court's ruling was "wholly improper, lacked judicial
integrity" and was based on a "specious theory."

The accused had shot his ex-girlfriend to death as she left work at a
hospital, and loaded her body into his car. One bullet went through her
skull, causing her to die within a maximum of five minutes, testified the
medical examiner.

To warrant the death penalty, the murder had to be committed in the course
of committing another crime. The court chose to define the loading of the
woman into the car as kidnapping, a definition that required that she be
alive at the time. The prosecutor disavowed this theory in his closing
argument, but the court argued that the medical examiner "did not provide
unequivocal evidence that the victim was dead at this time." So much for
"beyond a reasonable doubt."

Then-Attorney General (now U.S. Senator) John Cornyn didn't lambast the
Court of Criminal Appeals, but he took the rare step of choosing not to
defend its position in a death penalty case before the U.S. Supreme Court.
Instead he "confessed error."

In that case, the Court of Criminal Appeals upheld a death sentence despite
the fact that an expert witness argued that the defendant, a native of
Argentina, was a future danger to society partly because he was Hispanic
and that ethnic group is found in prison in higher proportions than the
population as a whole. It was a level of "science" that would have played
well in Nazi Germany.

The Supreme Court ordered the Court of Criminal Appeals to reconsider in
light of Cornyn's position that introducing race poisoned the jury's
decision. The Texas court did reconsider.

It let the death penalty stand because the defendant's lawyer didn't raise
the issue at trial. And it ruled that it was none of Cornyn's business. A
federal judge has since ordered a new sentencing hearing for the defendant.

The U.S. Supreme Court has recently had to correct the Court of Criminal
Appeals in two other matters that seem obvious to the rest of us.

One was that when a defendant's attorney sleeps through much of a death
penalty trial, the defendant did not get adequate representation.

The other was that a prosecutor may not systematically exclude blacks from
a jury because the defendant is black. (The Supreme Court had established
that rule in 1986, but it felt the need earlier this year to remind the
Texas court of it.)

Is it any wonder Blackburn is glad the cases of the Tulia defendants, most
of whom are black, don't have to go before this court?