The Importance of the Court of Criminal Appeals

“The Court of Criminal Appeals is more important to that element of the community that is going to be looking at jail time. But for the rest of us, it’s the Texas Supreme Court, because they handle civil matters,” [SMU political scientist Cal] Jillson [, who is frequently called upon by reporters for his astute observations of state and national politics] said. “And civil matters are matters of, what happens to a regular citizen when they are harmed by a corporation?”

(Peggy Fikac, 3 seats up for grabs on state’s highest civil court, Houston Chronicle.)

This is what we’re up against: the attitude that, if you’re “a regular citizen,” not part of “that element of the community that is going to be looking at jail time” (would that be the criminal element?) the Court of Criminal Appeals is not very important. The Texas Supreme Court? Well, if you’re harmed by a corporation what the Texas Supreme Court says will be important.

While I suspect that more people have their rights violated by the government every year than are harmed by corporations, I’m not going to say that the Texas Court of Criminal Appeals is more important than the Texas Supreme Court. The Texas Supreme Court manages the relationships between corporation and citizen in approximately the same way that the Texas Court of Criminal Appeals manages relationships between government and citizens: each court tells the institution what it can (and occasionally what it can’t) get away with when dealing with the people.

The relationship between our government and us should be of utmost concern to regular people, people who can’t imagine themselves ever facing jail time. Never mind that even people who can’t imagine themselves ever facing jail time wind up facing jail time; even if you were a regular person and you somehow knew that you would never be charged with a crime, the actions of the Texas Court of Criminal Appeals should be of grave concern to you.

Why? For three reasons:

First, what the government can do to a factually guilty person accused of a crime, it can do to a factually innocent person accused of a crime. This is true because of the presumption of innocence. Since everyone is presumed innocent in court, everyone (innocent or otherwise) gets treated the same.

Second, what the government can do to a factually guilty person suspected of a crime, it can do to a factually innocent person suspected of a crime. This is true for the same reason—because there has not been a legal determination, guilt can’t affect what the government does.

Third, what the government can do to a factually innocent person suspected of a crime, it can do to a factually innocent person not suspected of a crime. This is true not because of a principle—in fact, there is a legal standard (probable cause) that allows police to treat people suspected of crimes differently—but because of the way we punish the government for violating peoples’ rights.

We punish the government for violating our rights by excluding the evidence it obtains. Because civil-rights lawsuits are largely toothless, the only thing the government has to worry about when it’s considering violating rights protected by the Fourth, Fifth, or Sixth Amendment to the United States Constitution (or Article I Sections 9–15 of the Texas Constitution) is that anything it finds might be excluded from evidence. If the police stop you illegally and search you (in violation of your rights under the Fourth Amendment and Article I Section 9) and don’t find anything and let you go, you have essentially no remedy (it’s actionable under the Civil Rights Act of 1871, but good luck finding a lawyer to take that case for a contingent fee).

Because we have decided that the best way to punish the government for violating our rights is to exclude the evidence it discovers as a result of the violation, it is the Court of Criminal Appeals that sets the rules for how government will deal with people. And because acquitted defendants’ cases are never appealed, so it is in cases involving guilty people that the court sets the rules for how the government will deal with people who are never even charged.

If you can imagine yourself being innocent and accused of a crime, the importance of the Court of Criminal Appeals should be clear. Likewise if you can imagine yourself suspected of a crime. (Not being able to imagine yourself suspected of a crime is a failure to confront reality.)

If you don’t trust the government to respect your rights even when you are not suspected of a crime, the importance of the Court of Criminal Appeals should be even more obvious.

Here, I suspect, is where the problem lies: Texans generally trust their government—not necessarily because the government has earned their trust, but because they want to trust the government (it’s a scary world otherwise) or because they haven’t given it much thought. They think that, because they and their loved ones follow the law, they will never be “looking at jail time” and the Texas Court of Criminal Appeals is not important to them. That is far from true.

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