In his dissenting opinion in Pena issued today, Chief Justice Gray's opening line is: "As a dog returns to its vomit, so a fool repeats his folly." I didn't need to read any more then--although I will now!! That line says so much.

JAS

Another pearl from the Good Book -- Proverbs, God's one-liners.

The only justification offered by the majority for its result is the assertion that:

This review of the last two decades demonstrates the import of preserving potentially exculpatory evidence, particularly in cases involving some form of laboratory analysis. Indeed, the unique problems seen in Texas during the last decade provide considerable impetus toward a conclusion that �fundamental fairness� demands preservation of potentially exculpatory evidence.

http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8238

BUT the Court of Criminal Appeals instructed in Cobb that:

Appellant points to nothing unique in Texas history, law, or jurisprudence which would require, or even suggest a basis for, Texas courts to deviate from Supreme Court precedent on this issue. . . . [W]e are not free to impose our notions of fairness, nor those of dissenting Supreme Court justices, upon Texas citizens as a matter of state constitutional law without firm support in state history or policy. This Court's constitutional mandate is to uphold and faithfully interpret the laws of this state, and not to create new constitutional doctrines without solid jurisprudential foundation.

Cobb v. State, 85 S.W.3d 258, 268 (Tex. Crim. App. 2002).

How does the 10th Court's identification of an alleged problem tell us anything about what the Texas Constituttion means? Isn't this exactly the kind of "notion of fairness" that Cobb forbids.

Note also, the remedy the court says we should use, i.e., tell the jury that they can consider the loss or destruction of the evidence in their deliberations. Have we really come to the point where we think jurors are so imbecilic that they can't look at a case like this one and make a decision as to whether the this situation should impact their verdict without the trial court telling them it's ok? Why do we spend so much time and energy trying to make sure that jurors consider this and don't consider that? If we have so little faith in the ability of jurors to figure out what's important and what's not, then why do we let them make these decisions in the first place?

I find it ironic that appellate courts are constantly singing the praise of the jury system as a means to root out the truth, and then treating jurors like three-year-olds who can't figure out the relevance of a piece of evidence without a court order.

I like this line (from an obscenity case): "Here we go raising the price of dildos again. Since this appears to be the law in Texas I must concur."

Regalado v. State, 872 S.W.2d 7 (Court App. -- 14th Dist. Houston, 1994.)

Nice to see you posting, Jane.

I am curious how much new litigation has been spawned in those states which chose to impose this new absolute duty upon the prosecution. Also, whether the amount of evidence being lost changed. I was also of the impression that the State did not have to produce the weed in the courtroom to obtain a conviction.

Yeah, I read the footnotes. I'm a dork. I generally try and save my best lines for footnotes. But anyway, I digress. Did anyone read this from the majority opinion?:

"In reading the dissenting opinion�s selection from the Scriptures, we are reminded of the recent observation of the Court of Criminal Appeals:

First, the statement is unnecessary; it contributes nothing to the legal issue before us. Second, and most importantly, it is highly unprofessional. When a judge chastises other members of the judiciary in this manner, it not only reflects poorly on the judge, it undermines the integrity of the justice system. The words of Supreme Court Justice Kennedy are particularly appropriate here:

The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse. Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.

If public respect for the judiciary is to be maintained, it must begin from within."

Does the CJ's quote from the scriptures really undermine the integrity of the judiciary or simply colorfully describe the fatal flaw in the majority's analysis? The CCA case referred to by the majority was a situation of rank insubordination within the court heriarchy. The CJ's reference went to his peers and equals. That said, much as I admire the CJ, he might have found something less antagonistic

JAS

[This message was edited by JAS on 05-04-07 at .]

John, regardless of how that particular opinion had been written, I do not believe his colleagues would feel any less antagonized by the Chief Justice. Too much has already been said for them to kiss and make up (at least during this lifetime).

I see no reason why court opinions cannot have some combatant comicality or riotous rebuffs. This does not mean they necessarily lack decorum. In any event each reader can judge for himself if excess is present or the imagery overly impetuous. But. we can all agree we are witnessing unusual forms of judicial discourse from the Tenth Court.

Well, Martin, your point about spirited exchanges is well-taken. Witness some of the opinions by Scalia. Always a good read.

CJ Gray is the White Knight in his jurisdiction but, in the future, can we expect to see him sitting on one of the two Austin high courts?

JAS

My guess is, he is quite happy where he is. But, I do wonder if the shape and tone of his opinions would be different in another venue. Another interesting study would be to analyze the development of his opinions over time and particularly in relation to the departure of CJ Davis. The time period when Gray and Vance composed the court seems to be when the sparks really started to fly. I must say that I miss not being able to address briefs to the Tenth Court.

Maybe things are out of hand. Hard to imagine anything more fervid (or arguably impudent) than this:

"It is impossible for me to convey the level to which I am disappointed by my colleagues by the issuance of the order to change the publication designation of Newton v. Texas. Newton v. State, No. 10-06-00160-CR, 2007 Tex. App. LEXIS 2477 (Tex. App.-Waco Mar. 28, 2007, no pet. h.) (mem. op.). Their action shows that they have no regard for the rules of appellate procedure, and, therefore, no respect for the rule of law. Why they would do this on such a seemingly insignificant issue escapes my ability to comprehend human behavior."

At least the CJ refers to "them" as colleagues.

I think Gray would also make a great MP.

If you haven't seen it already, check out CJ Gray's dissenting opinion in 10-03-00214-CV: "I dissent, I really dissent." Footnotes are handy for preparing 10th court's box scores--civ and crim.

From the dissenting opinion of Justice Thompson in the battle between two official reporters of the opinions of the Supreme Court of the United States:

"It is a matter of regret with me, at any time, to dissent from an opinion pronounced by a majority of this court, and where my mind is left balancing, after a full examination of the case, my habitual respect for the opinion of my brethren may justify a surrender of my own. But where no such apology is left to me to rest upon, it becomes my duty to adhere to my own opinion; and I shall proceed to assign the reasons which have led me to a conclusion different from that at which a majority of the court has arrived."

Wheaton v. Peters, 33 U.S. 591, 668 (1834) (Thompson, J., dissenting). Wikipedia tells us this was Justice Marshall's last "major" case. Not sure what that means. See also Tabler v. Castle, 12 Md. 144, 157 (Md. 1858) (quoting the first sentence of Thompson's Wheaton dissent).

Ran across another of Justice Thompson's very fine introductions to one of his dissenting opinions (in the case that spelled the end of the Indian "Nations"). So will share it:

quote:

---

Entertaining different views of the questions now before us in this case, and having arrived at a conclusion different from that of a majority of the court, and considering the importance of the case and constittuional principle involved in it, I shall proceed, with all due respect for the opinion of others, to assign the reasons upon which my own has been formed.

---

First few couple lines from our federal horse slaughter for human consumption case, 476 F.3d 326:

"The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse,(footnote) but film is an imperfect mirror for reality."

(footnote) "Though thieves would occasionally eat the cowboy's horse. See, e.g., Seven Men From Now (Batjac Productions 1956)."

I don't know, I thought Chief Justice Josh Morriss' opening to the court of appeals opinion in Hughen v. State was pretty good:

"When anger and alcohol intersect, unfortunate results can ensue."

Not to take away from Chief Justice Gray, however, who's always good for a memorable line and excellent analysis.

[This message was edited by David Newell on 10-12-09 at .]

"On March 29, 2008, J.M. was raped while walking home. She did not know her attacker, so during the attack she bit off part of his ear lobe and kept it in her mouth until she was able to put it in her pocket, where she saved it to give to the police. After the rape, the attacker fled on foot, and a passer-by allowed J.M. to use his cell phone to call 911. When police officers arrived, J.M. gave them the ear lobe."

Details.