People often don’t realize the many nuances involved in criminal appeals. Direct appeals are only part of the process. Later writ applications can raise various issues, including ineffective assistance of counsel. This week, Judge Bert Richardson of the Texas Court of Criminal Appeals joins Todd Smith and Jody Sanders to talk about the many different paths criminal appeals and writs can take. Judge Richardson also discusses his role on Texas’s highest criminal court, the court’s pandemic response, and ways attorneys can be vigilant in criminal legal matters where the stakes are so high.
Listen to the podcast here:
From the Trial Bench to the Court of Criminal Appeals | Judge Bert Richardson
We are very fortunate to have Judge Bert Richardson of the Texas Court of Criminal Appeals, the highest criminal court in the state, as our guest. Judge Richardson, thank you so much for being here.
It’s a pleasure to be here. Thanks for having me.
Can you tell our readers a little bit about your background? You’ve had some interesting jobs and experiences prior to going on the bench if you could fill that in a little bit.
I attended Brigham Young University. I took a two-year break and served a mission in Argentina. After I graduated from there, I attended St. Mary’s Law. While I was at St. Mary’s, I was hired as an intern. Back in those days, it was a paid position. If you graduated and passed the bar, they’d hire you. I worked in the DA’s Office for several years. I think almost every department they had, juvenile, appellate, the trial courts. From there, I was hired at the US Attorney’s Office in the San Antonio Western District. While I was at the US Attorney’s Office, the legislature created new district courts in Bexar County. I was encouraged to apply for one of those vacancies and was appointed by Governor Bush. After I was appointed by Governor Bush, I remained there until 2008 in what I call the political sweeps for the judiciary start and I was defeated and then I became a visiting judge. I worked in over 50 counties across the state in three different judicial administrative regions and then I was elected to the CCA in 2014. That’s it in a nutshell.
You had some pretty deep ties to San Antonio, Judge. Did you grow up in that area or what led you there?
My dad was in the military so I was fortunate to live all over the world. We lived in Europe for eight years. I was born in Washington State. We were in New Jersey and Arizona while he was in Vietnam. We were in Mississippi. He decided to retire here in the early ‘70s after he completed his service. I finished high school here. I then attended BYU. I was in Utah for several years and then I was in Argentina for two years during that time. Once I came back for law school, my ties were here. I had a year between undergrad and law school. I worked at Southwest Airlines when it was an upstart airline. I worked at the reservation center. I stayed there until the end of my second year of law school. I then decided it was too much. I was working nights and going to school during the day without telling anybody.
I don’t know how you pulled that off. In Argentina, did you manage to acquire some fluency in Spanish while you were?
That’s all I spoke for two years. I came back and stuttered in English a little bit. My dad was stationed in Spain when I was a young kid. I attended Spanish schools very young so it came back to me naturally. I still speak it. It’s very beneficial in this part of the country.
One of the things that I thought was interesting and has gotten you some attention in recent years is you’ve been a long-time photographer. When did that hobby start up?
When I was eleven. I’ve been doing it longer than most people who’ve been alive that I know. I had a fascination with it. Because my dad was in the military, the camera equipment came cheap. You could go to the base federal lab for $0.10 a day and print all the pictures you wanted. By the time I graduated from high school, I was a photo editor on the yearbook. When I got to BYU, I poked my head in the yearbook office one day early in my freshman year and asked them if they needed photographers. They said they did. It turned out to be a good deal. After I shot with them for a couple of months, they offered to pay me to do it. It covered most of my school expenses.
I did that until I went on my mission. I came back. In my last year and a half at BYU, I did the same thing. I poked my head into the office. I wasn’t majoring in photography. I offered to take pictures for them. They took me up on it again. I was the assistant photo editor in my last year at BYU for the yearbook. I got a fascination with sports photography at that point and enjoyed taking pictures. Mostly with track because nobody else wanted to do it. Everybody wanted to shoot the basketball, football games and I liked track and I got hooked on that. When I graduated from law school, I contacted a couple of magazines and I’ve been doing it ever since the late ‘80s for various publications. I’ve gone through the process of shooting for newspapers and magazines. Now, the format is more of a website or the digital format.
Anyone who wants to view your work should check out your Facebook page. I saw some interesting photos. You had shot photos of Sha’Carri Richardson before she became the next big track star and is going to be heading to the Olympics coming up soon. It’s neat to go and see those photos now and know what she’s headed for.
That was her breakout meet. I didn’t know who she was. The picture that I like was from all the way across the other side of the track. I was shooting some of the handoffs at one of the relays and that race started. I like it because you have all of the fans in the background. You can see their reaction to her winning. There’s never a bad spot on the track to catch it and get a picture.
Our readers can’t tell but your Zoom background is a picture you took of a cold front blowing in over the Capitol and it’s a beautiful photo.
We might have to screen capture that and post it on our Twitter feed because it is a beautiful photo. You’re also a runner yourself.
I am. I’m getting up in years. The older you get, the harder it gets. I ran well in high school. I thought I could run in college, which was the dilemma I faced when I got to BYU. They were a national powerhouse at the time. I thought, “I’ll try out and get on the B team or something.” I was taking pictures at the same time. I quickly decided that I was never going to be a 353-miler like they had. The photography was going to pay my schooling. That’s the choice I made. Running is a good sport because you can keep up with it, even if you decide not to pursue it at the college level or anywhere else.
Training at BYU, I imagine that you’ve got some altitude there. You probably got in darn good shape.
The first few weeks were a shock to be honest with you.
Back to your time on the trial bench, was it a criminal court? Did you have general jurisdiction?
In Bexar County, it was a criminal court. They’re like Houston and Dallas. On the visiting circuit, it was a smorgasbord of everything. Up until that point, for ten years, that’s all I did was criminal stuff in Bexar County. Once I got defeated in 2008, at the beginning of the political sweep. Losing in November when you had everything going for you was a surprise or a shock and then trying to find a job at that time of the year is a little bit awkward. I wanted to go back to the feds but they had a hiring freeze. I was encouraged to put my name on a list to be a visiting judge.
What I did was I reached out to three regional presiding judges and said, “I’m interested.” It worked out really good. Within about six months, I had a full plate of cases. Pat Priest was one of the judges that I respected and worked with in Bexar County. I talked to him about it and he said, “Go to some of the civil seminars, learn how to do at least civil dockets and some of the easy stuff. That’ll make you more marketable in the visiting circuit.” I discovered that worked pretty quick, especially out in West Texas.
I did a lot of work in Judge Abel’s region. He would say, “You do the circuit out there. I need you to be in Sonora at 9:00, Ozona at 11:00, and head over to Big Lake,” where there is no lake. There’s a big hole in the ground. From Big Lake, you go to Rankin. By the time you drive out to Rankin, you’re wondering, “What’s out here? How could they have a docket? There are no people out here.” You get to the courthouse. In most places, I would take pictures of the courthouses because they were historic looking. I’m looking at this courthouse in Rankin. It’s a box on the side of the hill. I couldn’t find a single side of it I wanted to get out of my car and shoot.As long as you can get along with people and you know what you're doing, the work seems to come as fast as you can get it right. Click To Tweet
I went from Rankin to Fort Stockton and then from Fort Stockton, I would do the loop back home and go to Sanderson and hit Del Rio. Then I’d make my way back to San Antonio. I would be doing civil dockets, quick ones, divorces, sometimes settlements and those types of things. I did preside over a few civil cases but I warned the lawyers in advance, “Look, my expertise is criminal law. If you want me to preside over a civil case and an assumption of the risk and give me all the case law that I need.” I did a train wreck that lasted three weeks. I think the lawyer was from Austin, Bob Burns. He represented the train company on all of their wrecks. It was a good experience. I learned all about trains and train crossings and that they have black boxes. Once you get into the nuts and bolts of a civil trial, I found that to be very similar to a criminal case as far as the rules of evidence. I tried to stay away from complex civil cases. If I was assigned one, if I got into it, felt uncomfortable, I called the presiding judge and said, “Get somebody else.”
I was reminded that for quite a long time, we had separate rules of evidence for civil and criminal. I can’t remember what year it was since I started practicing that those were consolidated into a single Texas Rules of Evidence. You might have to look up a little different set of rules. There might be some assumption of the risk and the judge relying on his knowledge of the Texas Rules of Criminal Evidence. I was going to ask you about the process of becoming a visiting judge. We see it here and around especially with the good people that have happened to have not won their elections. Some of those have assumed positions as visiting judges. Do you have to have a certain amount of time on the bench to do that?
Years ago, if you’ve been elected for one term, if you’ve served a full four years. They expanded that and it requires 2 terms or 8 years to have been a judge. Once you’ve done that, you’re eligible to sit anywhere in the State of Texas. Normally the level that you sit is you’re capped out and you can’t go any higher than that but they make some exceptions to that. Sometimes the county court judges can preside over district court cases. Once you’ve reached that point then it’s a question of contacting the regional presiding judges and saying, “I’d like to work in your region.” You give them your name. I think it’s like being in private practice. Initially, you’re wondering, is anybody ever going to come in the front door?
Is anybody going to call you? You’re going to sit at home? I think the first couple of months I saw every episode of JAG or something like that. It was a nice break between finishing my time in Bexar County and jump-starting the visiting stuff. Once the visiting stuff started, I would compare it to being in private practice. As long as you can get along with people and you know what you’re doing and you do a good job, the work seems to come as fast as you can get it. I found myself working in all three regions and being able to pick some of the cases that I did or did not want to do. There are some areas where I don’t want to go back there again. It wasn’t a good experience. By the time I got elected to the CCA, I’d worked in over 50 counties. It was an amazing experience. The types of cases I handled were a great insight into the justice system across the state.
One of the cases that I think you handled as a visiting judge. It was a famous one. That was the Sonja Casey case. Back up a little bit, it’s an actual innocence case. For those of us who are civil lawyers, can you explain actual innocence a little bit and put it in context for us to help us understand it a little better?
An actual innocence claim is created through the case law to some extent but the legislature has adopted it. When I’m talking to people about the criminal justice system, there’s a distinction between an appeal and a writ without insulting those who are reading. Once you get convicted and want to appeal your case, the appellate process is limited to what happened in the courtroom. Maybe something on a Motion for a New Trial where you bring in additional evidence. Your hands are tied to that. As are the appellate courts, they are limited to the cold hard record of what’s coming up through the appellate process. I described the writs as a process of the defendant has lost at the trial level. He’s lost at the appellate level. He’s sitting in prison and thinking, “I didn’t do this. I got a raw deal. How can I get out of this? What is my last avenue of relief?”
To that extent, the legislature has created different levels of writs that one can file. Writs are different from appeals in that they allow the defendant to file a claim saying, “I’m entitled to relief under a limited number of circumstances that may not have been raised during the course of the proceedings.” Some of those circumstances include ineffective assistance of counsel. Sometimes ineffective assistance of counsel is like an umbrella where it encompasses every bad thing that happened in the case. Some of the other things are that new science comes along and science can tend to exculpate a person like DNA, arson evidence in Sonja Casey’s case and bite mark evidence. Any number of things that have been making their way through the criminal justice system. Texas is on the cutting edge of those things.
The last area, unfortunately, sometimes is that the state has withheld evidence. Evidence that would’ve benefited the defendant in his trial. A writ can typically lead to one of three things. Number one, it’s denied because it’s not cognizable or the facts aren’t there. Number two, you get relief by having the conviction set aside and it’s remanded to the trial court for a brand new trial. Number three would be the Court of Criminal Appeals declares the person innocent based on a thorough review of the trial, the appellate process and all of the new evidence placed before it. What we find is no reasonable jury would ever convict this person given new evidence that has been brought forward. We describe it as a Herculean hurdle to overcome. It’s difficult.
The burden is almost exclusively on the defense but it’s not impossible. I’ve been involved in over ten of those. Some of them are more high profile than others. I don’t know what it is that makes some more newsworthy than others. Sometimes it might be the reason they got convicted. It could be based on false evidence, lying to police officers or sometimes, it’s new science has come along and people get tired of hearing of the new science like DNA. It’s like, “We grant actual innocence based on an order.” We don’t write a side opinion or anything. It’s like relief is hereby granted based on the findings of fact and conclusions of law that the trial court submits. In order to get to the point where our court is considering actual innocence, something has to take place at the trial level. The defendant files his writ and there’s typically some hearing that takes place. The evidence is introduced and the good trial judges, if they think somebody is innocent, even if the state is not on board but the defendant is pushing forward. If a trial judge thinks that or if the state thinks it should be granted. It’s still a good idea for trial judges to prepare comprehensive findings of facts and conclusions of law that support the recommendation they are making to the Court of Criminal Appeals.
The CCA, we’re fact-finders. As judges on the Court of Criminal Appeals, we don’t have to believe everything that’s in an affidavit or whatever witnesses say. When those proposed findings of fact and conclusions of law come to the judge from the parties, the judge prepares his own and then submits those to the CCA along with all of the evidence and makes a recommendation.
The CCA reviews that and they decide has the defendant met his burden. In the Casey case, I think my findings were over 100 pages long. What I’ve found out about the actual innocence cases like the ones I’ve been involved in Michael Morton is the gold standard for how these cases, the gold and the bad standard. How did he get convicted? How did he get exonerated? As you begin to peel back the layers like an onion, maybe there’s new science, which you find there was probably some evidence that didn’t come forward, should it come forward? It’s a combination of many things. In the Casey case, it was a combination of Brady. It was ineffective assistance and then it was the new arson science that came along with very qualified experts coming from all over the country to testify.
What we thought was an accelerant, in this case, was not. It was a byproduct of the fire that was probably created by the victim in the case, not by Sonja Casey pouring gasoline on her uncle and setting him on fire. In Casey’s case, it made perfect sense. The uncle was in his 70s. He was an oil field worker. He had to have oxygen to function. He had an oxygen tank next to his recliner. He was a chain smoker. He had 5, 6 cigarettes going at the same time and he used a blowtorch to start them with an oxygen tank next to him. He would cook his hotdogs with his blow torch. Some of that stuff comes out then you factor in the bad arson evidence and you look at the ineffective assistance.
All of a sudden you realize, “This person was wrongfully convicted and we need to fix this.” In the Casey case, there was pushback from the DA, which made my job more difficult. Sometimes, the DAs don’t push back. What made it interesting is the district attorney decided he was in over his head. When it went to the CCA, he asked the State Prosecuting Attorney’s office to take over the case. That’s a little-known office. I think Judge Newell mentioned it but it’s down the hall from our office. They represent the state in front of the CCA on complex cases. The DA asked the SPA to take over the case. I think they had it for about two weeks. They called me and said, “We know that the DA has objected to the actual innocence but we agree your findings are accurate. We’re on board for an actual innocence finding.”
We had John Messinger on the show. He came on and explained to us all about that little-known smallest agency in Texas.
There are good lawyers down there. They know what they’re doing. I’ve done writs before on death penalty cases but the Casey case was my first jump into the actual innocence arena. You interviewed Naomi Howard. She was my law clerk at the time. Part of the deal was when she said, “I’d like to intern with you.” I was up to my ears in visiting cases. I was still campaigning for the CCA when I conducted the hearing. I think I’d been assigned the Perry case at the time. I said, “I need some help on this case.” She agreed to jump in. I have to give her a lot of credit for organizing those findings and putting them together. It was a good hire. I was lucky to have her.
We’ve learned a lot from visiting with Naomi as well here on the show including the story about how she came to be your briefing attorney. When I hear you talking about writ practice in general, there’s not a civil equivalent. The closest thing I can think of is a legal malpractice case where you’ve basically got to go back, retrace the steps and prove up a case within a case if you’re the plaintiff in a civil legal malpractice case. From what I know about writ practice, generally, it’s like you have to have a combination of skills. You have to be able to investigate, to essentially try the writ to the trial bench and then present everything when you do a petition for Writ of Habeas Corpus and the appellate courts too so that is a very detailed and involved practice area that I don’t think we, civil lawyers, know enough about.
You’re right about a legal malpractice claim. That’s why the appellate courts and our court have repeatedly said that it’s extremely difficult to raise an ineffective assistance claim on direct appeal. You don’t know what the lawyer was thinking or why he acted as he did. They typically get the benefit of the doubt on making decisions. Getting it on a writ is a whole different ball game because then you can go behind the scenes. If you’re a good writ lawyer and determine why those decisions were made, you can get the defense lawyer on the stand. You can question and cross-examine him. That’s the most effective place to succeed on that claim.
I wonder what the barroom conversations are like between the criminal defense bar and the writ lawyers. It’s like, “Jim, your client hired me and I’m raising an ineffective assistance counsel claim against you.” It’s not even against the lawyer, though. It’s raised on behalf of the criminal defendant and the state is the opposing party. It’s not in that way like a legal malpractice case.
The writ world is a very small world in the criminal justice arena and lots of trial lawyers, fewer appellate lawyers, but there’s a handful of writ lawyers across the state that know what they’re doing. It’s like this black hole of the criminal justice system where even defendants can file a writ so that’s why we get anywhere from 6,000 to 10,000 of those a year. The reality is that relief is seldom granted on writs because they are so technical and you have to do them correctly. As a general rule, you only get one shot at it. If you blow it, you blow it unless there’s some legal basis for a subsequent writ.
That’s the abuse of the writ doctrine that you’re speaking of. You can’t do successive applications.
Are you entitled to appointed counsel for writ?
No, you’re not, unless it’s a death penalty case. The often-quoted line from the Supreme Court is, “You’re not even entitled to effective assistance of counsel on a writ.” If your writ lawyer blows it then there’s an argument to be made that you lose on that point too. They’re not subjected to the same standard as the trial lawyer and the appellate lawyer because you’re not constitutionally entitled to writ to begin with. It’s a creature of the legislature. We’re mindful of that. There are a lot of different ways. If we look at a writ and we think, “There’s a claim here but the lawyer has blown it.” There are different ways that you can effectively communicate that. One of the reasons we get so many writs is because any prison inmate can fill out a writ form and make his claim but too many of them don’t know that there are limitations on the causes of action that they can incorporate within that.Work well with people and find ways to communicate with them properly. Click To Tweet
Before we transition into another topic, I do want to acknowledge what you said about the Perry case and I’m not going to cross-examine you on that. Just so the readers know you were the judge who presided over Governor Perry’s trial when he was indicted back in 2014. I’ll give that context. If you have anything to add, Judge, feel free but I know that’s a pretty charged area, no pun intended.
It was one of those cases that I was reluctant to take on. I had a lot of respect for the regional presiding judges that asked me to take cases and they asked me to do it. I told them, “I’m running for the CCA.” They said, “We still want you to do it.” That wasn’t that much more comforting to me. It was an issue in my campaign. I remind people, “I didn’t indict him. My role, in that case, was not as a prosecutor. My role was to preside over the proceedings and follow the law as it existed at the time I made my ruling.” I was comfortable with the decision I made. I was mindful of the fact that as it went up on appeal, that the appellate courts could change those rules or create exceptions that did not exist at the time I’d made my ruling.
I think Bob Pemberton put it best when he wrote the Austin Court of Appeals opinion affirming part of my decision that our hands are tied by Court of Criminal Appeals precedent until they change the rules. We can’t grant relief and that’s the position I took on it. Beyond that, I’ve never commented publicly on it. I didn’t feel like it was my role to do that. I respected all the players in it. I thought the lawyers in that process were very good. I was mindful of the fact that it was probably something that somebody would want to use against me when I campaigned. I stayed away from it and said, “My job was to follow the law. That’s what I did. If anybody wants to argue with me about what the law was at the time, I’m happy to tell you what it was. Beyond that, I did the job I was asked to do.”
I was the low man on the totem pole following the law. The only other thing I’d add is somebody at the Office of Court Administration left my cell number online. As soon as he got indicted, my cellphone exploded for a couple of weeks. I want to always answer it. Other than that, it’s behind me. I’m comfortable with the decision I made at that time. I respected the court for the decision they made to create an exception for that.
You won the election and have won reelection since then. Sometimes, you make difficult decisions and do the things that are brave politically. It’s not a political decision in your mind as a judge but it’s unfortunate that those consequences can come.
I think when you get into this business and that was my hesitation because I had a very nice job at the US Attorney’s Office when I was asked to apply for bench. That was always in the back of my mind that you’re running for political office. People wonder why do judges have to do that? But we do. I’m mindful of the fact that when you get politically charged cases, that half the people are going to criticize you for what you do and the other half are going to say, “You did a great job.” It comes with the territory. You have to figure out how to navigate those.
You served as a US attorney, you went on a bench in Bexar County and then you were a visiting judge. How was it going from that to running for a statewide office?
It’s a whole different creature. I was at the US Attorney’s Office for a year. It was a position that I had set my sights on after I’d been at the DA’s office for a few years. I thought I would serve out the rest of my legal career there. I enjoyed the work. It was a competitive job to get. The way they practice criminal law in that system is completely different than how I did it in the state system. When I got on the Bexar County bench, I knew that was not a shock to me because I’d worked in trial courts for almost ten years. That was an easy transition. The visiting was a little bit more difficult because it was described as being in private practice.
You don’t know when the next case is going to come in the door if you’re hanging your own shingle and visiting judges are like that. I was very fortunate that within about six months, I had all the work I could handle. I described it as a good gig. You get to meet a lot of people. The easiest part about that job was being nice to people. We call it R&R, Rule and Run, get in town, make a ruling and get out of town quick. Remind yourself that it’s their town. It’s not your town. You follow their rules as far as how they run the court. As long as you’re following the law then it’s their area.
I found that was the key to my being able to be called back to places on a regular basis. I could write a book on being a visiting judge. It was a fascinating experience. In the 50 counties I worked in, there were very few that I would tell the regional presiding judges, “I don’t want to go back there.” Almost everybody was nice and it was such a wide variety of cases. I don’t even know where to start. I could spend hours talking about it. Everybody says, “You need to write a book.” I’m like, “In my spare time.”
With my photo book and my legal book, how am I going to do that? The statewide campaign was a whole different creature. The general election in 2014 was not that difficult because my opponent never showed up to anything. There was still a presumption that the Republicans would wipe out anybody. I think I won by 20 or 25 points. Both of my primary races were very competitive for different reasons. There’s a method to the madness of running statewide once you learn where you need to go and what you have to do. It makes it a little less stressful but it is very time-consuming. I described driving to Houston and Dallas from my home like I would drive to downtown San Antonio. It was like, “Tomorrow we’re going to Dallas in the morning.”
My wife is retired now so she was able to help this time with a lot of the stuff. I had a conference in Austin. I leave the house about 5:30 to avoid all the traffic. I get there and the conference is usually over like 12:00 or 1:00. I got a text from her saying, “As soon as the conference is over, head straight home because we’re going to Houston.” I’d pull into the driveway about 3:30. We jumped in the car and we’d get to Houston about 7:00, 7:30. Do whatever function was going on there and turn around, run back home. This one was a real grind for a lot of different reasons.
It’s a grueling schedule. If you were running for the Texas Supreme Court, would you have spent more time on Southwest Airlines as opposed to on I-10 or I-35?
All those guys, we joke. It’s like we go to Midland for something and these guys are coming in on planes and we’ve been sitting in a car for eight hours. We laugh about it. I get it. It was a pleasant surprise that there’s a lot of communication between the two high courts. I had always heard that there was tension or resentment between the courts. At the Supreme Court, they’ve all been very nice to me. It’s been a good experience. Judge Newell will explain to you how our building is set up but they’re on the third floor. We’re on the second floor. My card gets me to the second floor but it doesn’t get me to the third floor.
They can’t go from the third to the second floor. If we want to socialize with them, we have to meet on the first floor and take each other up to our own chambers. I’ve been up to their offices. My first year on the court, it was humorous. I got a call one weekend from the clerk of that court saying, “We’re outside your office and we need permission to go in.” I’m like, “Why do you guys need to get in my office on a three-day weekend?” “Our fancy coffee machine that has an automatic water feeder into it erupted over the weekend and your office is flooded.” I’m like, “My first question was you have an automatic coffee machine in your conference room? That somebody services?” Their historical society fund or something like that. That’s what Judge Caser called it.
That’s not a joke. The Texas Supreme Court Historical Society may or may not have contributed to that. Maybe we need to start a Texas Court of Criminal Appeals Historical Society.
On my first day in the office, I looked at the couch that I had, I thought, “God, did this thing come from a crime scene or where’d you guys get this? Take it out of here and put it in the basement. I will sit on the floor.”
I think it’s worth asking though on that point. It’s worth noting for the readers, how did the Court of Criminal Appeals get started separate and apart from the Texas Supreme Court?
Judge Erie is a historian for the court. I might defer to him on that other than it reached the point where they decided that there were too many cases. I’m trying to think somewhere in the late 1800s but eventually, somewhere in the 1900s, there was this overlap of civil and criminal cases. I don’t pay enough attention to when Judge Erie starts talking about that stuff to know the finer points other than, “I’m on the court of criminal appeals and all we do is criminal cases.”
I didn’t mean to put you on the spot there.
If any of our readers are interested in starting a CCA coffee fund, maybe set up a GoFundMe and reach out to Todd and I will put you in touch with Judge Richardson.There's a distinction between an appeal and a writ without insulting those who are listening in the criminal justice system. Click To Tweet
You could do what the Supreme Court does and make the junior judge responsible.
If you go to the Capitol Building, they have the original Court of Appeals and the Texas Supreme Court right across the hall from each other. It was all in the same building. Somewhere during the time Judge Johnson was there it basically evolved to the CCA having their own presiding judge. I would describe him as the Court Historian. He’s the only judge on the court that clerked at our court.
That sounds like an invitation will be forthcoming. I think you’re the second Court of Criminal Appeals judge who has come on with us. That pulls your court even with the Supreme Court of Texas on active judges. We had Judge Green on who I know you have to know well being from San Antonio. He was still sitting at the time he was on the way out. It may require a judgment call but we’ll get Judge Erie on. That’ll give the CCA a straight tie.
When we got on the court, there hadn’t been any change in ten years. From 2015 to now, I’m third in seniority on the court, which doesn’t speak for my qualifications only that there has been a quick change. We have six new judges.
How was the transition going from being a trial court judge and a lot of different scenarios to the appellate court? Did you have a lot of appellate experience before you took the CCA bench?
I had a lot of appellate experience but not in that experience. Even if you’ve had the appellate experience, anybody who works on our court would tell you that the personality transition is more difficult than the writing aspect of it. I did appellate work exclusively at the DA’s office for a few years and I liked it. When I went to the Feds, I offered to do my own appeals. While I was on the trial bench, I often did post-conviction writs where I would write my findings of fact and conclusions for law. That was not difficult. The difficulty going to a court like the CCA is you’re put into a position where you with eight other judges from all over the state. It is diverse.
Everybody comes from different backgrounds. The goal is when you get your cases is to try to get five votes and get your opinions out. When I say there’s a lot of diversity on the court, that’s by way of gender, race, experience and personalities. All of that means that you have to be able to work with other people. You have to find ways to communicate with them and write your opinions so you can get their votes. That’s the real hard part of the job. Judge Herbie told me when I got elected, she said, “I know you have a lot of experience doing appellate work and trial work. It’s going to take you about 1.5 or 2 years to figure out how all this works and be comfortable with it.” She was spot on in that description of the job.
Your court is unique because you still kept a fact-finding role even on the appellate bench, which is something that civil lawyers can’t fathom. You can’t appeal the facts.
That’s important because like in the Casey case, I was aware of that. I was in an unusual position with Casey and with Perry that those cases ran right up until the time I took office at the CCA. I was at the CCA when the cases came up. I was at the CCA while the Perry case was navigating its way through the Austin Court of Appeals. Casey came to the court almost immediately. I was still working on the findings while I was at the court too. I called it my extra credit project where I wasn’t getting paid to do it. I wanted to make sure it was thorough. It gave me a little bit of an advantage in knowing how the judges thought at that time and what they were looking for when an actual innocence case would come before them, which is why my findings, in that case, were so comprehensive.
I think we talked to Judge Newell about the court’s pandemic response.
The only thing I would say about the pandemic is we had a case that came up during the pandemic, which was the Liddell case. Judge Newell talked about it. He didn’t participate in it but we were criticized because of the pace that the case was going. The defendant was convicted of a murder case in Houston. We asked for some additional information and I won’t get into what went on behind the scenes other than to say, “It put us in the unusual position of writing a side opinion explaining the difficulties we had to navigate in getting the information we needed on that case and why it took so long.” What happened during the time period from the time he filed it until we voted on actual innocence was one of the lawyers involved in the case wrote an op-ed piece for the Chronicle that ran on the Express News.
They were highly critical of the delays that were going on. We issued a side opinion in the case explaining the problems that we had encountered and why there were delays. Sometimes on an actual innocence case, there’s this knee-jerk reaction that the state, the trial court and the defense agree that he should be found innocent. We do the rubber stamp and say, “Everything is fine and you’re innocent.” The reality is that we have an obligation to review the record. We don’t have to accept what the trial court says or DA’s office says although most of the time we do but we have an obligation to review everything.
The pandemic created its own set of problems in that case that those who were critical of the court did not recognize. I found it very frustrating and the case is now over but it was the subject of a couple of columns in the Chronicle, Express News and a long article in the Texas Monthly. I decided that the only way our court could publicly respond to that type of criticism was to write a side opinion saying, “We’re going to grant actual innocence here. We’re mindful of the fact that this took longer but these are all the problems we encountered. It wasn’t a pandemic and the quarantine. It was a ransomware attack. It was a failure of either the trial court or the lawyer to give us all the information that we were entitled to have.” That case comes to mind when I think about this.
We’ve visited at length about the ransomware attack on the civil side but I don’t think we’ve given much thought to how it affected certainly the Court of Criminal Appeals. I can’t recall if Judge Newell covered this directly or not but I assume you were affected. There was some slowdown in Judge Newell’s processing of it.
Judge Newell didn’t participate in the grant case so it didn’t impact him as much. It was a politically charged case because some of us were getting ready to run. We’d just gotten out of the primaries. The reality is that the timing of it, the quarantine, the pandemic and the ransomware attack all occurred in the same window of time. It also ran up to close in time to our summer recess where we could have our last conference. I don’t want to say we’re off for two months because we’re not but we don’t have conferences where we issue opinions. It was a snowball effect where there were delays in our ability to get the work done.
There were delays in the ability of the district clerks to give us the information we needed. It posed its own set of unique problems that I don’t think anybody cared about when it came to writing a nasty article about our court because they felt like, “We’ve got plenty of ammunition from the past, let’s pile it on.” I found it very frustrating because both of you know we can’t comment on pending cases. The only way we can comment on those is to write a legal opinion and issue it by the court. I did in this case. It’s there for everybody to read.
That’s a great point. The news writers can say whatever they want but the court only speaks through orders and opinions. It’s not like you’ve got a mouthpiece that speaks to the public and takes questions from reporters. I imagine if they’d call the clerk’s office they’re promptly met with, “We don’t answer these questions.” One thing we thought we might ask you about and maybe we can wrap this into either a tip or a war story for the readers is we’re curious about what you observed. As a trial judge, a visiting judge and now as a Court of Criminal Appeals judge and hearing a wide variety of criminal matters, did you notice any trends or any standouts in terms of advocacy before those various courts? What were the things that you thought worked and maybe what didn’t?
I thought the students were exceptional and we’ve done this a few times. All of us are humans. There’s nothing that changes our personalities. When we become judges, we have our own likes and dislikes, in what we like to see and how cases are tried and what types of personalities we like. I have always been of the opinion I’m not big on lawyers trying their cases from the courthouse steps and going public with them. I think you come into the courtroom and you be professional to everybody, including the opposing side, and make your case to the judges and be professional about it. Don’t disparage anybody. Once you get to this level, most of the lawyers have that experience and there’s seldom any nastiness going on. Having worked all over the state and then worked in Bexar County for a few years, you get into the trial courts.
There’s a lot of theatricals that I don’t see at this level. It’s nice. I’m dealing with experienced, qualified professionals and to me that works, tell us what your case is. Don’t trash the other side, be polite and professional about it and go about your business. Maybe other judges might see things differently but that’s how I prefer it. That’s how I tried my cases. It’s been a great experience. I’m glad I did this. I had people ask me, “What do you think about being a lawyer?” I said, “I’ve been very blessed. I’ve loved everything about my legal career except having to run for office.” It’s a wonderful experience ranging from criminal matters, international matters, to civil matters out in the middle of West Texas that nobody’s ever heard of. I appreciate you having me.
We appreciate this. This has been great.
We sure do. I liked the story of riding the proverbial circuit as a visiting judge. I don’t think Judge Roy Ferguson has anything on you. Thanks, Judge. We’re sure grateful for your time. I think it’s going to be an enjoyable episode and very educational. Thanks for being with us.
Thank you for having me. I enjoyed it.
- Texas Court of Criminal Appeals
- Facebook – Judge Bert Richardson
- John Messinger – Past episode
- Naomi Howard – Past episode
- Judge Paul Green – past episode
- Judge David Newell – Past episode
About Judge Bert Richardson
Judge Bert Richardson was elected to the Texas Court of Criminal Appeals in 2014. He served as an Assistant District Attorney for Bexar County and Assistant U. S. Attorney. He was appointed to the 379th District Court of Bexar County in 1999. He is a graduate of St. Mary’s University School of Law and is board certified in Criminal Law.
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