Unlike many states, Texas has separate high courts for civil and criminal cases. Criminal practitioners follow the Texas Court of Criminal Appeals closely because its decisions impact criminal law in every corner of the state. As a former appellate prosecutor, Judge David Newell brings a unique perspective to that Court. Judge Newell joins Jody Sanders and Todd Smith in this episode to discuss his background, his experience as a prosecutor, and his path to running for statewide election as a first-time candidate. He also provides insights on Court of Criminal Appeals proceedings and how the Court responded to the pandemic, including its adoption of new technology and practices. Finally, Judge Newell discusses the Court’s credibility, the role stare decisis plays at the Court, and opinions he wrote of which he is particularly proud.
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Stare Decisis and Advocacy in the Court of Criminal Appeals | Judge David Newell
Our guest is Judge David Newell of the Texas Court of Criminal Appeals, which for our non-appellate or out-of-state readers is Texas’ highest criminal court, it’s the criminal equivalent of the Texas Supreme Court. Judge Newell, thank you so much for being here.
Thank you for having me. I appreciate it.
If you would, give our readers a little background on you, where you are from, what you have done in your career and your path to the bench.
I was never going to be a judge or even a lawyer. In high school, I was doing musical theater and I was into writing. That’s the big thing. I was a creative writer. I wrote poetry, short stories and plays. I went to U of H, which still has a great creative writing program, but I went there to get an English degree in Creative Writing. While I was there, a friend of mine was sexually assaulted. I didn’t know how to be an ally, which we would say now, you would be an ally. I didn’t know how to do it. I responded the way any guy would. I was angry and then I realized that’s not helpful. I volunteered at the Houston Area Women’s Center for about a year handling their Rape Crisis Hotline. I was one of many. I wasn’t running the whole thing. I volunteered to answer the phones every week. I realized quickly that I wasn’t going to make a big difference in anyone’s life writing haiku about crushed red pepper, which I did win a contest though for it. I realized that if I wanted to make a difference in people’s lives or wanted to help people like my friend, I should go into law. That’s what I did. I went to law school to become a prosecutor.
I graduated from U of H. I went to UT and then I came right back home to Fort Bend, which is where I grew up. I was born in Bethesda, Maryland, but I went to high school at Clements High School in Fort Bend. I was a prosecutor there for about ten years. I started on the line like everyone else. I had a background in writing and I was a Teaching Quizmaster at UT. I started volunteering to do appellate briefs. I did a lot of appellate briefs until they created a position for me to do criminal appeals. After being there for about ten years, I went to the Harris County District Attorney’s Office.
I’m doing solely criminal appeals at that point. The thing I always tried to do was whatever they needed me to do, I would do it. I joke about this, but it’s sadly not a joke, but I have boundary issues, like, “Please do this.” I’m like, “I will figure it out. I don’t know what Coram Nobis means, but I will learn it.” Around 2013, it became obvious that three judges on the Court of Criminal Appeals were stepping down. I had been doing presentations for the State Bar and the Texas District Attorneys Association on case law from the United States Supreme Court and the Court of Criminal Appeals.
I was very familiar with the Court of Criminal Appeals. I wanted there to be some continuity. We were losing Judge Cathy Cochran, who passed away, an incredible voice on the court, incredible light. Not to suggest that others weren’t great, but that’s the thing, you want to keep that continuity. I was like, “Someone needs to run.” I went to my boss, I said, “You should run.” He did not listen to me. I went ahead and had a meeting with my family, where we talked about what we are going to do because this is a statewide election. I have never run for anything. I don’t think of myself as a politician. My younger son who was about ten said, “Dad, I was scared to run for student council, but I did it.”
I was like, “Thanks.” I threw my hat in the ring, the first election ever and I won. At the general election, I got in the state, I got the second-highest number of votes in Texas. I was reelected in a very contentious general election with a massive turnout. I got the most votes in history for my court. Jane Bland had more votes than me, though. She’s doing something well, but I’m close, a higher voter percentage, but still. I’m not good with math. That’s what led me here. I’m not some, “I threw my name in the hat.” I am Board-Certified in Criminal Law and Criminal Appellate Law. This is something that I hope that I’m good at. This is something I do have a lot of experience in.
We have talked a lot about judicial selection and election in Texas. How was it going from essentially a very nonpolitical position at the DA’s office to running for a statewide political office?In politics, perception is reality. Click To Tweet
It was a nightmare. The mistake that I made, it’s funny. Remember, the first time I’m running is around the same time that House of Cards is hitting its second season. Everyone who’s involved in politics is watching this. I’m relating to Corey Stoll, the Pennsylvania Senator, going like, “I’m going to be killed in someone’s car.” It was a stressful environment. Not to take away from the fact that I meet plenty of wonderful people out on the trail and on both sides of the political spectrum, but at the same time politics is about the perception is reality. In a race like the Court of Criminal Appeals, there is not a lot of money.
What other people are doing to characterize you and how they frame you and how they look at you becomes who you are seen as, and it’s not necessarily true. It can be frustrating. I also had a friend that went into politics a while ago. He said, “What do you think about it?” I was like, “You can have the most stressful day where nothing happens. You can spend the whole day thinking about something, talking to people and clarifying it. Nothing is going on and then nothing happens. That’s a good day. That’s ultimately a good thing.”
The general sense is that you have to deal with politics. I’m naive in this. My father is a Naval Academy graduate. He is my idol. He’s a guy I looked up to. He has always been like, “You’ve got to be who you are. You’ve got to stand up for who you are.” They raised me with the idea that you’ve got to do a good job. People want someone who’s going to do a good job. There are a lot of labels, but at the end of the day, there’s always work for good people. If you work hard, you do a good job, that’s the best you can give to people. That’s the way that I tried to level out all the political noise to try and focus on, I’m going to try and do a good job and be the best judge that I could be. It was a real culture shock.
As we have seen, you can do a good job and you might not keep your job for reasons having nothing to do with your performance. We are happy that you were able to be reelected and can visit with us. Congratulations on the stellar numbers that rolled in. Next time around, maybe you will be able to shoot for Judge Bland and see.
I’m a team player. The rising tide lifts all boats. That’s me. I’m happy for her to have better numbers than me. I appeared in front of her once as an advocate. That’s the other cool thing about this is that I went from being this advocate. I appeared in front of Bill Boyce, Jeff Brown, Tracy Christopher, Jane Bland are people that I argued in front of. Now I’m like, “They talk to me at parties. They know who I am.” It’s total imposter syndrome. At any point, they are going to be like, “You shouldn’t let that guy in.”
I’m hoping that this show does the same for me and Jody.
I see what you are doing. You are breaking in the back door.
The downside of that is then Todd and I have to talk to people at parties.
Appellate practitioners aren’t necessarily known for being gregarious.
There are a few exceptions, but this is true. Your position with the Harris County DA, that must have been a lot of fun for you being able to work on criminal appeals all day every day. Did you have any ability to pick and choose what you were doing or were you the guy anytime there was an appeal it came across your desk?
I was never the guy. I was more like the guy in Fort Bend, but I worked with John Harrity, who’s the Chief in Fort Bend who is another great mentor of mine and I think very highly of. In Harris County, however, it’s chock-full of people there that are so talented. They have been there for a while. They randomly assign stuff. I learned a lot from all the people that were there. They would give you stuff. The only time they would assign staff is someone who had expertise in, say, Padilla claims, which is the United States Supreme Court case that says you have to instruct accurately regarding immigration consequences before you plead your client out and you are ineffective if you fail to do so. That was a big deal across the country.
One attorney who’s handling these appeals ended up getting a lot of these things because there were going to be so many of them. That was it, but I got a wide smattering of a lot of different things. They will say, “You are on a rotation. You would get your death penalty cases. You get search cases, adult-oriented businesses cases.” There are lots of great stories that you get from these things, but also there are a lot of emotional things you have to deal with. From an advocate standpoint, when you write a brief, you want to tell a story in your facts. You typically want to do that. Any adult-oriented business case, I had to describe this building that had become this adult arcade. It was one of the most disgusting things I have ever had to write.
You get cases like that, but then you also get other cases that are of much more dire consequences that are very tough. Another thing in Harris County that I did love was a lot of the lawyers. I loved it because the lawyers would come in and ask me, “What are we going to do? What should we do here?” Ask me for legal advice. I would go down and I would appear in many of those death penalty cases and things like that to handle some of the more legal arguments. That’s one of the reasons why I ended up having to not participate in a lot of the cases that came before the Court of Criminal Appeals. The death penalty case with Bobby Moore, which is a mental retardation case, it’s ping-ponged back and forth. That was a case that was assigned to me as a writ attorney. I was not able to participate in it. I got to do a lot of different stuff. The big answer is I got to do a lot of different things and it was all relatively random.
Among DA’s offices, I assume having that specialized appellate division is concentrated in the more urban areas. We have learned from talking with some other folks that in the rural areas they don’t have the personnel and the funding to do that. I would imagine that your plate was full in Harris County with that whole office. That’s a neat opportunity it seems like for a budding appellate lawyer to come up and get some great experience. Being board-certified both in Criminal Law and Criminal Appellate Law had to be a good thing for you. I don’t know the timing on that if you did that since getting to the court or before, but you would have had the experience to do it.
It was before. I would be remiss if I didn’t emphasize it too. One of the interesting things about Harris County was that I wanted to go to a place. This was right after Johnny Holmes, Chuck Rosenthal had taken over, I thought this is going to be stable. I went through 70 days. It was an interesting time and upheaval. You want to keep your head down, but at the same time, one of the other neat things is they created the Public Defender’s Office in Harris County. To speak to the idea of the experience that you get, doing something like that, you are going up against talented defense attorneys that are top of their game as well.
It’s not just that I’m working with colleagues that are good, working under Alan Curry or with Eric Kugler, but I’m also getting to go up against attorneys like Jani Wood, who is a phenomenal appellate advocate. On the private side, I have to face off against Brian Wise or Carmen Roe. These are phenomenal appellate people as well. You have to bring your A-game anytime. It did help a great deal. I got Board Certified in Criminal Law because I had enough of a background in trial. I did that in 2004, 2006, I can’t remember. Right when they offered the criminal appellate thing, I signed up and did that. I have a hard time saying no. I have boundary issues. I’m happy to take up any challenge if it will help people.
You had mentioned death penalty cases. We had someone from the State Prosecuting Attorney’s Office. How much of your practice was in the CCA at the Harris County DA’s Office and how much of it was intermediate or did it vary?
That was the thing that I have looked back on. Having been on the court now, I was pretty lucky that I got to go up to the Court of Criminal Appeals a lot more than a lot of people do. I had 6 or 7 cases that had gone up there and I thought, “That’s not that much.” I look at experienced people that are like, “This is my first time getting up here.” I had a lot more experience getting up there from Fort Bend than I did from Harris County. There were a lot of interesting issues that I could dig into that got me up there. From that, I always say the one skill that I got is that I know I’m good at issue spotting, and I’m good at making those issues sexy so that someone will bite off. If you were to refer to John Messinger, he’s a friend of mine, he’s very good at crafting these sexy hooks. He’s like Bruno Mars in that regard. The Bruno Mars of Appellate Law. It’s like, “Don’t believe me, just watch.” I got good at that. I did have a lot of experience with that, but more of it was going to be at the regular appellate level because of transfer cases. I was lucky enough to also get the ability to appear before the 13th Court of Appeals. I had one in front of the 6th. I got a broad base of experience to do some of those things, but primarily it was in the 1st and the 14th.
We enjoyed visiting with John when he was on the show. We learned so much about the State Prosecuting Attorney’s Office and had no idea how that all worked. The civil appellate lawyer, the closest analog we had was the Solicitor General’s Office. It was quite fascinating to hear about how that whole process works with the SPA and the relationship with the CCA.
The thing that I envy for him is he’s able to look at everything that’s going on at the Court of Appeals level. They are careful about, “These are the things that are coming up.” I mentioned trial attorneys are coming to my office in Harris County to ask me about what to do. It’s like that for him, except people from all over the state are doing that and saying, “What do you think about this? Do you think we should bring this up? Is this going to be a problem later?” It’s a sweet gig. There’s a little bit of a push to create a defense analog. That’s not a bad idea either. I don’t want to go on too much, but the Public Defender’s Office in Harris County has been a good thing. When I got up to Austin and Travis county, it doesn’t seem like they had something like that. It looks like they are trying to move in that direction. Those are all for the good and the benefit of the court system as a whole.
What was it like coming from a DA’s office perspective and then going on to discretionary review criminal high court? Was it a culture shock?You’ve got to be who you are. You’ve got to stand up for who you are. Click To Tweet
They asked me that when I was running, like, “Are you going to be another prosecutor on the bench?” It is a completely different experience. I did not realize how much goes into the decision-making at that level. I was thinking of it in terms of being an advocate—there’s a blessed simplicity to being an advocate because my side is the one. You were like, “I have a position. This is it.” That’s all you have to focus on to make that argument. When you are on the court, there are so many layers to the way that you look at that beyond just the one issue. You go, “How’s this going to play on this other context?” You are having to do all of that. One of the analogies to the legislature is the legislature can have hearings. They can bring in stakeholders from all over so that they can at least come to a better conclusion as to how something is going to play out across the entire state and get a bunch of diverse perspectives. But when you are a court and particularly you are just a judge, you have to try and do that all in your head and you have to rely on the advocates to give you stuff.
You try to focus on the task at hand, but also be mindful of how it’s going to echo into other areas of law. You have to consider the institutional credibility of the court. That’s another thing, too. One of the things that I learned was the legislature gets its power because it has purse strings. The executive branch has power because it can enforce laws. Courts exist on their credibility. If you don’t make good decisions, people start saying, “We need to pack the court or we need to fire one member of the court.” That’s what they start doing, is lose trust in the institution. That’s another big thing that you have to do and keep in mind when you are making these decisions even if you are like, “I can see what this is but I question, whether or not this is going to result in a loss of credibility for the institution.” That’s where things like stare decisis become a big deal.
I have been weighing the idea of stare decisis. I was thinking about stare decisis, the one big side effect of that is that it gives credibility to an institution. You are connected to all of these other cases and everyone has come to rely on them. If you are going to switch course, you can’t do it in the back room. You have to explain why you are going to do it and why it’s better to go this other path. When you do that, that’s the most credibility you can get having acknowledged that you have made a mistake or that someone previously made a mistake.
I would think in Criminal Law, in particular, that’s especially important because the impact of changing rules and things like that and settle law on that stuff is enormous.
You’ve got a little different issue than the Texas Supreme Court with the overlay of all the constitutional questions that come. The Texas Supreme Court doesn’t cite US Supreme Court cases all that often. Whereas in the Court of Criminal Appeals, you’ve got basic Fourth Amendment stuff for example. You have to maintain faithfulness to those authorities too, not just the CCA’s previous decisions as well.
I have always said, too, one of the things I find fascinating about the job that I like is I always feel like I’m in a conversation with the United States Supreme Court. So much of our case law is. Not one of the court’s better moments, the Bobby Moore case, which I had to sit and watch like a slow-motion car wreck because I couldn’t participate in it. We would say something to the United States Supreme Court, they say, “Do this again.” You are having this interaction with them. It almost feels like you are writing letters to them, and they are writing letters back to you. It’s neat to feel that way. The danger is feeling like, if you are that close to the sun, you are the sun. You are not at all. We are below that and they call the tune. I have said on many occasions, “I don’t like this opinion, what they are doing is wrong.” I don’t get to say that. I don’t get to question them because they are the last word. They are the authority on Federal Constitutional issues. They have the final authority on that.
I feel like your cases from the Court of Criminal Appeals are far more likely to warrant their attention than your average case from the Texas Supreme Court too, just because of those issues that are involved.
One of the things that’s interesting to me, speaking of the Supreme Court too, is something I have had to go through. I mentioned that I wanted continuity when I started, and what I have experienced for the last several years—and I may be experiencing in my next term and every two years—is our court has been churning through new judges. Our court has changed the makeup completely. Now I’m in the middle. It’s a little bit dishonest to say this. I was placed nine, and I came in at the same time as Judge Yeary and Judge Richardson. They drew lots to find who going to be the least senior judge. I wasn’t there for the drawing, but amazingly enough, somehow, Richardson, who is the elder statesman and higher up on the place, becomes the most senior. Judge Yeary who’s a little bit less old but also a little bit lower on the number in place four, he’s the next guy. I’m number nine, I’m the youngest and I’m the least senior.
I feel that the fix was in on that. Now, I’m squarely in the middle of the court. I have watched them do this. The point I was trying to get back to is that the Supreme Court is going through that too. I’m watching them do their thing going, “I know what that conference was like. I know what went down.” It’s like you see it and it has been interesting. I feel for them, but they have done it in slow motion. There has been a more slow motion thing because it hasn’t been as drastic of a change as we have had to deal with because we had three new judges the first year I got there, then two new judges, then one new judge. The opinions from the United States Supreme Court, particularly in Federal Constitutional Law, are moving the goalposts without telling us to do that. I say that by giving full rights to schadenfreude for all the people that have to look at my opinions or our opinions. It’s true.
They were doing these things and then we were going, “We’ve got to address it.” The cell site location information, a third-party record doctrine about the Fourth Amendment, they had this case called Carpenter, it’s a great case, it’s very fascinating, but it’s like, “You guys, the previous year, denied cert on another case out of our court on cell site location information. Carpenter comes out afterward and we have to adjust.” They were doing things like that in a lot of different areas. It’s affecting our court a lot because we are having to catch up to the way that the new Judges Gorsuch and Kavanaugh and those guys are thinking about. We have no clue what Amy Coney Barrett is going to be like, but you have already seen the change with Gorsuch and Kavanaugh. It makes for interesting work is the way to look at it.
Does the junior judge on the CCA have to get coffee for everyone?
No, but I did have to hold the door for everybody because I was the guy that had to open it. I would go in first and hold the door or go out first and hold the door. I had to do that. There were some traditions like that, but not many. Unfortunately for me, it was only two years and I quickly passed it off to other people. The people that are sitting on either end of the bench have fake drawers. In my seat on an oral argument, the drawer will not come out because it’s not even a drawer. It just looks like a drawer. I hurt my fingers many times trying to open a drawer. Now I have a drawer. Those are the kinds of things. If you look at our robing room and all this kind of stuff, I always like to joke that we are like the potluck court.
We have periodically gotten together with the Supreme Court of Texas, not to knock them at all, but it’s like, “Let’s go to these nice places.” When our suggestion is, “We should get together.” We are like, “What do you want to bring?” “We will bring this.” There’s a positive thing to that too. It’s great that they have that experience. It’s great that we can sit there and be like, “We are much more of a rough and tumble family group dynamic. We get together.” We are trying to be a little bit more traditional and starting traditions. It’s hard when you keep moving through different judges and then history is lost. You tear your history down as Eddie Izzard says. “This house has been here for 50 years.” Except in Europe, it’s like, “Thousands of years.”
You mentioned when you signed up to be on the show, a couple of cases that you wanted us to ask you about. I would like to hear about them. You mentioned Ex parte Mayhew.
Ex parte Mayhew is a case that I’m very proud of. There are a lot of more true crime podcasts and documentaries that are out there. One that a lot of people are familiar with is Outcry on Showtime. There was a documentary called Southwest of Salem about four women in Bexar County who were wrongfully accused of sexual assault because one of the ex-husbands of one of the women was manipulating things to try and get the women in trouble and pressured two girls to make false allegations against these women.
They are featured in this whole documentary, so it’s a fairly high-profile case. We had the case. I wrote the lead opinion on it, exonerating them and recognizing actual innocence and the idea that it’s important. The big thing that I brought to this, the thing that I’m the proudest of because when I read the record and I looked at everything involved in the case, the one thing that struck me is that a lot of times these actual innocence cases seem to be having an undercurrent of so-and-so is going to get paid, getting compensated by the government. The perception is that weighs into the decision-making.
That’s looking at it the wrong way. The real thing should be these people who are innocent, who have been convicted, want their name cleared. Specifically, you need to have a court be able to say, you are innocent. This comes at a time where other members of the court are saying, “We need to raise the definition. We shouldn’t declare someone innocent unless they have proven their innocence,” which is impossible. At that point in the process, you will always be able to point a jury found these people guilty, this new evidence has come in and it undermines it, but at the same time, you are saying they are not guilty. You are not saying they are innocent. I’m like, “You are never going to try.” As a practical matter, I have said in another opinion, “I don’t think that you could practically retry someone who has met the burden they need to meet to be found innocent.”
We should be doing that. The courts should be in the business of saying, “We are going to declare you innocent.” You can never make their lives whole. They have spent all this time in prison for something they didn’t do. The government was responsible for that. It’s a terrible thing. I’m not trying to cast aspersions on any of the players, but once you get to that stage where someone is innocent, we should be in the process of saying, “The state meets their burden of proving someone guilty beyond a reasonable doubt, if they have met their burden to show someone innocent on the writ of habeas corpus, then we should be saying they are innocent. They are getting a new trial and there’s a presumption of innocence and we should be treating it that way.” That’s something that I’m very proud of and means a lot to me. This is the thing too. People are like, “Do you want to meet the San Antonio Four?” I would sit in a corner and I would say, “Nice shoes.” These people are heroes.
I can imagine the character of people that would go to jail knowing that they are innocent and spending ten years or so and having the opportunity to get out if they confess. They wouldn’t do it. They insisted that they were innocent the entire time. I’m in awe of that. I’m not that special. When I would lecture or when I present to prosecutors on ethics and how to be a good prosecutor, I always bring back things to Milgram’s psychological experiment. If you are familiar with that, that’s the experiment where someone would come in and volunteer to press a button while someone in another room would pretend to receive electric shocks. The person pressing the button was the subject.
They would do it and the study would show that the person would get the electric shock and they would hear the actor in the background shouting like they were being tortured. Eventually, everyone would go, “I can’t do this anymore.” Someone would come out with a clipboard and a white coat and say, “Don’t worry. You are not responsible. We can do it.” The crazy thing is the statistics. They were shocking the person after they thought the person was dead. One guy walked out. I always say like, “That’s what you have to be like. You need to be ethical. You should be the person that would walk out of Milgram. They should put that on your grade. You should always aspire to that. We are all flawed people. I know that it may be an impossible task, but at least if you strive for it, you are going to be better.” That’s the kind of character that you see in those folks that were exonerated. It was a big emotional case for me. Not to take their story though, but I’m proud of that legal observation that I made, which meant something. Still battling it out though, battling that issue.
You also mentioned Milton v. State.A rising tide lifts all boats. Click To Tweet
This one got a little bit of coverage across the country. This is a situation where a prosecutor is creative. I feel terrible because I have had to educate people in this case. I don’t mean to embarrass this prosecutor, but you had a case where a guy robs someone, it’s a robbery. The difference between robbery and aggravated robbery is that the aggravated robbery is dangerous because someone has a gun, but in robberies, you threaten to kill someone, but it’s not as assaultive or where you don’t cause serious bodily injury. This guy walked into a CVS and he engages in the least violent robbery you can imagine. Literally, on the surveillance video, you see people lining up behind him to check out while he is holding up the CVS.
He has a lot of criminal offenses in his past that are not necessarily violent but are dishonest. He’s a thief more than he’s a robber. The prosecution gets a conviction, rightly so. They get to the punishment phase. When they do this, the prosecutor says, “I want to offer this video,” which was a viral video. If you are on Facebook and hit the GIF button and enter, lion eating a baby, you will see the picture of this viral video. He put this video on to the jury and said, “I know what you are saying. What was that all about?” The video was of a lioness in a zoo behind plexiglass trying to open her mouth and bite this small child who’s sitting on the other side of the plexiglass, oddly enough, dressed like a zebra.
I don’t know why, if you are a parent, you are going to dress your child in a zebra coat. They are videotaping the whole thing. The lion is going for it. The lion is not casually like, “I’m hungry.” He’s pawing at the thing. It’s vicious. The argument from the prosecutor was, “If you remove that glass, it’s a tragedy. That’s why you need to lock this guy up because he has done all of these things in the past. You should lock him up because otherwise, he’s going to commit more crimes.” The obvious thing that we ended up saying in the opinion is, “There’s no evidence that he wanted to eat a child.” The video carries with it this great potential to get the jury to think that the crime was worse than it was. Maybe if this is capital murder, then that would be something that you would consider.
The video was a little too much. It went too far. The side note from an appellate nerd geeky standard is that this opinion got assigned to me, and they randomly assigned cases at the Court of Criminal Appeals, I was lucky enough to get this one. I went through several different agencies to create our media page. The Court of Criminal Appeals has a media page now. We put a link to the video so that everyone can see that video. We wrote the opinion for the screen. There is all the talk about slip opinions of publications. This is when my thought was this is going to be something that everyone is going to read. They are going to read it when they go to our court’s website. There’s a hyperlink in the opinion that you can click on and it will take you right to the video and you will get to watch it.
It also includes the site. The Supreme Court did something like that. They did their own media page with a car chase, but they didn’t have a hyperlink to it. We did that and we also embedded pictures from the exhibit. It’s a real groundbreaking moment as far as technology in the courtroom. It’s also a pretty good opinion because no one had ever said, “What do you use as a demonstrative exhibit in a closing argument?” I’m very proud of that as an innovative thing that we did. It’s also a much more lighthearted story than some of the other cases you have. I thought that you might enjoy that. There are a couple of newsletters going, “Why would you put that on there?” Sometimes we get carried away. That’s a big technology in the courtroom case. It’s one that hopefully we will have some legs, as far as the press is concerned.
We can talk about Watkins v. State. That’s another one you mentioned.
That’s one that just came out, it’s a 7-2 decision. This is one of these opinions that I’m very proud to have been able to work on, but it was also one that I did a lot of work on to win. The case wasn’t originally assigned to me. I wrote a dissent that persuaded other people. The case ended up coming to me and then I turned what would have been a fractured decision from the court into a 7-2 opinion with clear guidance on criminal discovery. As a prosecutor, it’s more like I want to turn everything over for you, but I also don’t want to be tagged for having failed to turn over something I had no idea I even had or should have turned over. That’s the tension with discovery. That’s what I see going on in criminal discovery, at least from my perspective.
We recognize that the Michael Morton Act, Article 39.14 from the Code of Criminal Procedure, has completely revamped criminal discovery. I’m proud of how it works a lot of things into it to explain 39.14 was originally passed to mirror civil discovery. For whatever reason, the court decided to go with a materiality concept to determine what the word material meant. It made it much harder for the defense to get stuff. For a long time, there was a limited right of discovery. If you go back to ’65 when they passed this, the theory, the prevailing theory, was it’s bad to disclose things because the defense can then manufacture evidence. It’s better for the truth-finding function for the prosecution to be able to keep stuff close to the chest.
Over time, we have seen that’s not accurate. It’s much more efficient to turn more things over. It does encourage more pleas. The recommendations through a lot of cases has been: there’s got to be an open file policy. But they didn’t require it. Now with the new statute, this opinion has recognized this statutory right to discovery is far broader than what due process requires. It was a simple case with punishment evidence where the defense asked for notice of punishment evidence. The state says, “We are going to introduce all sorts of extraneous offenses.” They never showed them the exhibits. We had to look at all of this previous case law that had interpreted 39.14 and say whether or not we were going to apply it.
A hidden gem in it from an appellate practitioner standpoint is it recognizes the prior construction canon for statutory analysis, which says if there has been a clear understanding of what the term meant, and the legislature didn’t fix it, then we presume the legislature intended that interpretation. This is a rare case where you can say, “The case law isn’t all that clear. The legislature has changed the statute to some degree. We can’t presume that.” It says clearly there has to be an authoritative definition from the past for the legislature to rely on. That’s one of the little hidden things in there that I like. I’m proud of it because it does what the court probably should have done in 1965 and say, “Discovery is like civil discovery.” That’s what we are supposed to treat it like, but now with this new statute, there’s this clean break going forward.
I know that it has led to a lot of changes. A lot of people are turning a lot more stuff over. I’m happy about that. The prosecutors that don’t like it, the thought is if you are doing an open file policy, this opinion won’t affect you at all. It comes down to when you fail to disclose something. There are other issues that you are going to have to answer, but ultimately it says if it’s likely that you are going to introduce relevant evidence, you should turn it over. One of the judges says that he thought that this is going to be the most important case I ever wrote. It may very well be. It’s all downhill from here. I need to stay out of everyone’s way.
You hit on something there briefly that is an important thing that we have touched on in this show before. Your court does have the opportunity in some situations to provide a lot greater rights than due process requires whether through legislative or whether through Texas Constitutional Law. That’s one of those unique, little interesting things that people sometimes forget about when you are talking about a state high court.
I did understand the pushback on the case, but that was one of the things I thought was: this is a brand new statute. If the legislature wants to grant greater rights, they can. We need to recognize it. Why would we interpret the statute in a way to do the opposite? We have fights over whether the Texas Constitution provides greater rights. That has been funny. I don’t know what you all would think about it, but on that issue, a lot of people tend to think, “The Federal Constitution is the floor and the Texas Constitution is the ceiling.” There’s another theory that has been floated of, “The Texas Constitution is a floor or a ceiling, but it’s in a different house.”
I thought about that, I’m like, “That seems to make some sense when you think about it.” I went and looked at the supremacy clause and then I was like, “I don’t think that you can do that. The supremacy clause specifically says you can’t provide fewer rights in your State Constitutions than the Federal Constitution provides.” That’s the thing that I see. It is an interesting opportunity where we could provide greater rights. Perhaps we could do that a little bit more. Watkins was a situation where we did recognize that.Courts exist on their credibility. If you don't make good decisions, your credibility starts breaking down. Click To Tweet
This is an area where the United States Supreme Court can’t touch you.
If you provide greater rights, they can’t do anything because it’s an independent state grant. There’s a case called Michigan v. Long. That was a situation where the State Constitution allows for a particular search, and they said no, but the question was how involved was the State Constitution. The pushback is if the State Constitution is involved, it’s a State Law issue. I’m like, “That goes back to the Articles of Confederation.” The whole idea behind a centralized constitution was that you can’t have states doing less than the Federal Constitution. Texas has a lot of unique provisions that have no analog in the Federal Constitution. Our separation of powers clause is unique. In that situation, it seems that it has to be a purely State Law issue. The Supreme Court is changing all the time, so I don’t know what they were.
We had talked a little bit about technology in the courtroom. How did your court adapt and how were your experiences with Zoom, the pandemic and all that?
The Zoom experience has been pretty good. My wife works at Baker Botts. I hear some of the civil side from her. It has changed the kind of culture in law generally. You don’t have to have literal face time in the office. You can do more telecommuting and the system works. We only need meeting rooms. Our court is very much like a monk-like existence anyway. There is not a lot of front-facing stuff for me. People are like, “You are weird. You do all sorts of things in presentation.” I’m not a judge. The only time I am a judge is when I put on the robe in oral argument or when I write an opinion. I’m front-facing then. We have adapted well to that one thing. It works pretty well. We have a little bit of talking over each other problem, but we have managed to work it out. I’m the biggest offender. They all hate me. I’m saying this with absolute shame. I jump in there with stuff and then I have to go, “I’m sorry.” Generally, we can get questions out without interrupting each other.
We were able to feed off of each other and ask questions. It works pretty well. It has been very good with oral argument. If there was a challenge to us in the pandemic, it was probably the ransomware attack more than anything else. I joke about that, for us, it was exactly like Apollo 13. The entire court climbed into the LEM and we had to go for three weeks sitting in the LEM except there was no heroism and no space and no Tom Hanks. Other than that, it was exactly like that. It wasn’t even our fault. The thing that I love is that our court was great. We are behind the curve on technology. We still agree with paper. That’s a valid thing. We handed out paper and we don’t use TAMES the way that the Courts of Appeals do.
We have a server. Everything is in folders. Everything was not corrupted in the same way. It was that we couldn’t get to it for three weeks. I was getting on OneDrive and uploading everything that we were going to talk about for conference so that everyone had access to it so that we knew what we were talking about. We only missed one conference. It took us one conference to go, “What are we doing? What do we have?” By the next conference, we were back to normal. That happened for about three weeks. We were in a pinch, but we made it work. It was more of a challenge than just getting on Zoom and meeting with each other.
The only other challenge with Zoom had to do with one of our judges is a little bit elderly and he’s concerned about his health. You didn’t want to bring in everyone for an in-person meeting when one judge doesn’t necessarily feel safe doing that. We have had a few in-person meetings. We have tried to do one in-person meeting a month since April 2021. We did our second one. We will meet and talk about opinions, but then we don’t want to make anyone on our staff uncomfortable. We would retreat to our chambers and do Zoom with the central staff. The way that the system is set up, if you don’t know, the Court of Criminal Appeals has a large central staff because we have so many cases coming at us. They work the cases up.
In addition, all the pleadings and everything that we get to see, we also get a memo from the attorneys and then they can come in and talk to us about writs and PDRs. That’s the part of the conference they are involved in, but we have done those still by Zoom. We are targeting coming back in September 2021 to full yes status as they say in Say Anything. We will be all together now, as The Beatles might say. The Zoom thing has worked well. The problem is, some people are not as comfortable with it, so they fade out, but generally, we have adapted. It has worked well.
I know that there have been courts that have experimented and done successful civil jury trials over Zoom. I know there are some unique issues in the criminal context. Are you aware if courts have tried doing criminal jury trials?
I am aware that they have tried doing that. There’s a little bit of a side note. All the emergency orders came out, and a lot of the prosecutors and the defense attorneys tried to explain we shouldn’t be doing in-person jury trials in criminal cases because of the confrontation clause. There are a lot of things that people don’t think about when it comes to a Zoom meeting for confrontation clause. What if your Zoom is only showing you X amount of space? You could have someone sitting beside you writing stuff down, “Say this.” You won’t know for sure. From the analogy outside of the criminal context, the same kind of thing a lot of people have been dealing with taking classes at college. I know this because my son has been doing this. How is he cheating, and they are mad that he might be cheating if someone is in the room and he’s taking the class?
The confrontation clause does create a wrinkle in criminal cases that makes it better to try and do face-to-face. That’s why it has been difficult. You have to get waivers. We had a case called Haggard, which was not a COVID case, but it did deal with a FaceTime witness who didn’t show up because she didn’t want to because she lived in Montana. That’s where the court seems to be going. You’ve got to show some need for this new procedure because Scalia is adamant about this idea that the constitution requires one thing to make it reliable. We don’t care about how reliable we think it is. The constitution has decided what reliability is, that’s face-to-face confrontation. The defendant is entitled to that. That’s why that has been relatively slow in the criminal context to get on board.
I do believe they have done it in situations where there have been waivers, but there have been people that are imprisoned at the time too, so they are coming in as more people are vaccinated. I feel so bad for all those folks. It’s got to be a nightmare to have to deal with all the things everything grinding to a halt, but hopefully, we will get back up. When they were trying to get together with these emergency orders, a lot of the folks on the criminal side were saying, “Don’t do this.” They didn’t care. They said, “It’s fine.” Eventually, they realize the problem of, “You should probably get waivers.” That seems to be the course du jour is that they will do it, but you need to make sure that you are not violating the Sixth Amendment. If you are going to try and do this thing, you need to see if the defendant is okay with that. You need to see if he will voluntarily waive it. I’m with everyone else. I can’t wait for it to be over. I can’t wait for this.
Has your court decided if they are going to go to in-person arguments in the fall?
I don’t know. I would imagine that’s going to be the next thing. I don’t think we specifically decided that thing. I believe we are going to have our last argument on the 30th of June 2021 and it’s still going to be Zoom, but the plan is September 2021 we are going to go back to normal. If the thought is we are going to go back to normal, we will try and see if we can do an in-person argument. One of the ironies is, for the longest time, our court didn’t videotape oral argument. We didn’t broadcast. A lot of people were like, “I can’t believe the Court of Criminal Appeals doesn’t do that.” We don’t have a historical society. We don’t have Cornell people going, “We are going to give you money. We are going to pay for this. We are going to put it up there.” We never had that.
That doesn’t mean that all the judges are okay with videotaping or broadcasting oral argument, but generally, once they gave us the money, we are like, “We will do it.” We did it and we have done it and it has been great. We are recording it. We are putting it on YouTube. The problem is that when we get to an oral argument in person, it’s going to be a little bit different. We were never broadcasting on Zoom or YouTube when we are having the argument live, but Zoom has allowed us to be able to do that. It’s all digital already, it makes it easier to get that out there.
We might lose some of our capability by going back live, which is a downside, but we will have to talk about how we are going to work that out. We do have the money and cameras all over the place now, but it requires all sorts of management for us to do that. That’s another wrinkle that we are going to have to take care of. It’s good and transparent. I do feel for the United States Supreme Court though, they don’t want to do it. You do you, that’s fine. I can see what they are saying. This is an opportunity to be broadcast to so many people. I’m going to throw some bombs. I’m going to make political statements or something in the middle of the oral argument. I don’t think that that’s helpful. That’s what the Supreme Court is probably concerned about, is that you act, that you are going to put on a persona or something instead of focusing on the law. I see both sides of that, but we are looking to continue with what we are doing. I believe we are going to keep trying to broadcast and make sure everyone can see what we are doing.
You talked about credibility as a court. An advocate who stood up and put on an act like that, it seems like that would destroy their credibility immediately with the court and with other advocates.
One advocate did start giving a speech and started turning around to the gallery. We are up here. We have had a lot of interesting things like that. Those are not good advocacy tips. One guy got up and decided he was a case dealing with a translator. He spoke German. He did this whole introduction in German. The first part of it was like, “What’s he doing?” It dawns on us, “He’s trying to make us feel like I need to understand what you are saying in German.” I don’t know a lot of German. I know one line from John Kennedy, Ich bin ein Berliner. I waited until my first question and I said, “Ich bin ein minute, counsel,” which is wrong. It’s like, “I am a minute,” is what I’m saying. I did that because I was betting that this guy had memorized this thing. If I tried to get him to continue in German, he would lose his composure. I was right. It did not go well for him. I felt bad for the guy, but I’m like, “Those tricks are not good. Those things aren’t going to help you. We do care about what your arguments are. We want you to succeed.”
The flip side of that is we had an argument with a young woman who had never argued before. It was obvious that she was nervous because she had to read everything. It was like a complete reading thing. I don’t think for one second that any of us were less with her and considering her argument because we were like, “This poor woman is very nervous.” We care about the arguments. We don’t care about the theatrics. I do though. I’m theatrical. I’m the only judge that sang from the bench there during the oral argument.
I’m sorry I missed that.Tricks at oral argument aren’t going to help you. Click To Tweet
This was when Judge Elsa Alcala was on our bench, but she wasn’t there. When you have the setup, as you would imagine, it lists all the names of people on the podium. He starts directing an answer to one of the other judges. He called that judge Elsa. He was like, “I’m sorry, Elsa.” He was mortified because he didn’t say judge. He stammered over a bunch of stuff to try and lighten the mood. I sang, “Let it go.”
I was thinking that it had to be a Frozen reference.
Judge, you have been very gracious with your time. We sure appreciate the opportunity to visit with you. It’s our tradition before we sign off that we allow our guests to share a tip or a war story. The Elsa thing and the German translation, that’s a pretty good war story. Did you have a tip or a war story that you want to share?
Speaking of oral argument, a lot of people talk about the validity of oral argument. I can tell you from experience, don’t sweat it. I have done everything wrong plenty of times. I have had the worst oral argument experience in law school. I conceded my entire argument at the second question. That’s how nervous I got. The first oral argument I did in my career was in front of the Court of Criminal Appeals back when Mike McCormick was Presiding Judge. I was going up against Brian Wice. A lot of people will have feelings about some of his personality, but look at his career, look at the stats. This guy has got a lot. He has had an impact on Criminal Law that he can be very proud of.
I’m going up against a top-tier advocate. My boss had said, “Let’s get David to do it.” I’m like, “Mikey from Life.” They say, “Here’s what you do. You go stay at the DoubleTree. That’s what you do, you walk over there.” I get a reservation at the DoubleTree. It’s the wrong one. It’s the one on the other side of 35. I’m stuck in my little Escort trying to figure it out. It’s okay, I’m going to have to do parking. I’m going to try to figure out where to park at the Capitol. I leave early to do this, realizing that I had gone to the wrong DoubleTree. I’m going to try and file something with supplemental Case Law because I didn’t work on the brief, my boss had worked on the brief, but I’m going to do the argument. I go there, and I hand these copies. I printed out copies and I hand them to the clerk. He goes, “You only gave us nine. You need two more copies.” I have a $5 bill in my pocket. I have $0.25 in the thing. I have no more quarters. I’m already going to have to get money to change this.
I run to the Tom Clark building. I get some guy working at the cafeteria to break my $5, give me some quarters, I fill the parking meter, back when parking meters were a thing, and then I go to the law library to make two more copies for this. I put the change into the law library copier machine, it breaks. I go to the line of the law library and I’m like, “Get the copy.” They took pity on me. They fired up the other one without charging me. I do that. I come back. I file the stuff. I wander into the courtroom. This is the day that they are having William King, the guy who was convicted for the dragging death in Jasper. Everyone in their family and news and everybody was there. I’m already sweating through my suit.
We finally get ready to go. I finally get up there to go. I started with, “The court says that you don’t want us to rehash our briefs and we should try and do things quickly. You don’t have to worry about me. I’m in metered parking.” That was the way I opened my argument. I was lucky enough to win. I did win, not through any great skill on my own part, but that is the first words that I said in my oral argument was that. If there’s hope for you, there’s hope for anyone. Be good at your job and you will be fine because a schmuck like me can make mistakes like that. That’s my big war story about oral argument. Don’t sweat it. It’s all going to be fine. Focus on your argument. Everything will be cool.
Thanks again, Judge. This has been great. We appreciate it.
Thanks for having me. I appreciate it.
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About Judge David Newell
The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney’s Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney’s Office from 2007 until his election to the Court.
Judge Newell has twice served as the Chairman of the Editorial Board for the Texas District and County Attorney’s bi-monthly journal, The Texas Prosecutor. He also co-authored a regular byline for the journal, “As the Judges Saw It,” a column that analyzed and summarized the significant decisions of the Court of Criminal Appeals and the United States Supreme Court. He served repeatedly on the planning committee for the Advanced Criminal Law Course for the State Bar of Texas. And he has presented the Court of Criminal Appeals Update at the Texas Conference on Criminal Appeals, the TDCAA Criminal and Civil Law Update, and the Texas State Bar’s Advanced Criminal Law Course.
Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. He is also licensed by the State Bar of Texas and admitted to practice before the Fifth Circuit Court of Appeals and the United States Supreme Court. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys’ Association. David and his beautiful wife, Shayne, currently live in the Houston area with their two sons.
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