Good things do happen!

Today, Lowell Thompson, Navarro County DA, had his petition for writ of mandamus conditionally granted against Judge Baird in the Willingham court of inquiry fiasco. When a motion to recuse a trial judge is filed, a judge generally has only two choices and Baird opted for neither. The law really applies to him too.

Congratulations Lowell


http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=19827

And now we will see whether Judge Baird attempts to rush a recusal hearing so he can continue to trample on the law by issuing a decision before leaving the bench on Dec. 31.

Left undecided by the writ of mandamus is whether Baird's ridiculous hearing to decide if there should be a hearing is an appropriate interpretation of the Court of Inquiry Law (see footnote 2 in the mandamus opinion). Such twisted application of the law perhaps underscores how the anti-death penalty groups ironically fight for due process by abandoning it when it gets in the way of a "higher" political goal.

For a good discussion of how the court of appeals might respond to a subsequent application for writ of mandamus, seeking to stop the pre-Court of Inquiry hearing, read the dissenting opinion by Judge Puryear: click here.

A key sentence from that dissent:

"I can see nothing in the provisions of the code of criminal procedure governing courts of inquiry that could be read to authorize an otherwise impermissible collateral attack on a final and presumptively valid conviction."

[This message was edited by JB on 12-21-10 at .]

I don't understand the jurisdiction debate between the majority and the dissent. I understand that a court only has mandamus jurisdiction over "a judge of a district court", but I don't see how that translates to "a judge acting in his proper capacity in a district court." If the judge was acting properly, then mandamus wouldn't be necessary!

Even though the form in which Judge Baird was acting is totally without any authority, he is still acting as a judge. A private citizen wouldn't be able to assemble all of the parties in a courtroom, order government officials to appear to present evidence, hear and consider evidence, and issue a ruling. He is manifestly only conducting the proceeding as a judge. The fact that he is doing that without statutory authority is the reason for the mandamus. It defies belief that this would also deprive an appellate court of jurisdiction over the mandamus.

And, fortunately, at least two judges on the court of appeals agree with you.

But the two in the majority held that they had jurisdiction only because the Relatives had included a request to declare Willingham was wrongly convicted, which they said was invocation of a civil rule. I think the dissent had a good point in saying that was very strained logic. I think that jurisdiction rested in what the judge was doing -- acting as a district court judge -- regardless of the label put on it, by any of the parties.

"I always said from the beginning that if this was going to get done, then it needs to be done the correct way," Thompson said. "I am happy the appellate court saw it needs to be done the correct way."

Details.

I was baffled by that argument as well, and I think you summed up very well why it was so strange. The dissent acknowledged that he was using his office as a district court, but because he wasn't authorized to do the things he was doing he wasn't acting in his official capacity? Seemed weird to me.

So, as long as you act outside your authority, you can't be stopped. Do I have that right?

Yes, that's pretty much how I read it.

Ditto here, and that's why it confused me so much. Isn't the point of mandamus to stop a judge acting outside his authority?

And isn't acting without reference to guiding law or principles the very definition of "abuse of discretion" which makes mandamus relief appropriate?

At least both opinions agreed that courts of inquiry--or "courts of injury," as some of their targets have taken to calling them--are not a suitable vehicle for re-hashing old cases.

I guess the anti-DP advocates will have to find another vehicle for their "kangaroo exonerations" (to steal a quip from someone else I know).