As you noticed on the TDCAA homepage - Smith County had to contest with a fairly bizarre defense motion in a capital murder prosecution. The defense attorneys issued subpoenas duces tecum for ten district attorneys and ten county judges from around East Texas.

They requested the prosecutors appear with (1 and 2) Any documents that describes the procedure and set out the criteria now used by prosecuting attorney(s) to determine if the death penalty should be sought in a case where an accused has been indicted for Capital Murder, (3) A copy of each indictment for Capital Murder that has been returned by a Grand Jury from January 1, 1996 to the present.

The County Judges were requested to bring (1) copies of any documents to which the witness has access, that relates to the expenditure of county funds for the prosecution or defense of murder cases, (2) Census data from January 1, 1996 to Dec. 31, 2001 for the county, to include a racial percentage breakdown and a percentage whose income is below the poverty level.

The defense argument is that the decision to seek the death penalty is arbitrary under the Equal Protection Clause. This idea appears to have first been generated by Lawrence Tribe in a 100 page article (half are footnotes) at 115 Harvard.L.Rev. 170 (November 2001). These attorneys also received a Memorandum in Support prepared by Jennifer Hunter at Yale Law School, January 2002 and John Niland, Texas Defender Service and Professor Stephen Bright. The basic reasoning is that since the Supreme Court said votes must be counted the same way across the state - surely the death penalty should be determined in a state-wide fashion.

Two different judges in Smith County quashed the subpoenas. The first hearing quashed the county jdge subpoenas based on the Census data being available from any number of sources - including the local library and the county fiscal data being available through an Open Records request to the Auditor. The first hearing also resulted in the quashing of the duces tecums to the district attorneys on similar reasoning.

Yesterday the judge presiding over the capital case quashed all the subpoenas for reasoning as stated in the Chronicle article.

Lubbock apparently had the same issue when a defense attorney requested subpoenas for each elected DA/CDA in Texas. Tarrant County also has a hearing shortly on the same issues.

In our favor: Cantu 842 SW2d 667, 692(Tex.Crim.App. 1992); King 953 SW2d 266, 274 (Tex.Crim.App. 1997); Bush v. Gore(read the whole thing - it does not stand for what the defense wants it to stand for) and The Supreme Court, The Florida Vote, and Equal Protection by Larry Alexander 38 San Diego L.Rev. 1077.

What we were planning on doing - and didn't have to - was state that there is a standard procedure in Texas. First, apply the facts to 19.03 to determine if it is a capital offense. Then follow 37.071 to determine if the death penalty should be sought. All decisions are made with relation to these statutes within a written framework, but the decision is individualized, not arbitrary or freakishly imposed, to each set of individual facts - just like it is supposed to be.

If you need, would like to see, or just have questions, please feel free to contact me or Ed Marty with our office.

Just FYI, the Judge in the Tarrant County case quashed the subpoenaes as well. If this goes like any other defense motion du jour, we will probably have deal with these for a couple of years until one of the higher courts addresses it.

We may see more similar motions as the defense seeks to prove disproportionate sentencing, apparently the latest attack on the "new" death penalty. See State v. Papasavvas, 2002 WL 221420 (N.J.).

Maybe the decision in Bass, USSC (06/28/02) will help curb some of these subpoenaes, if not the theories which spawn them.