Is this a good thing?
At first blush, this would seem to favor the prosecution, unless there are far more variance claims out there than I am aware of. If that is the case, then perhaps we might see more reversals if the defense lawyers figure out the right magic words to say at trial when faced with a variance.
Does this mean the defense now has to object in order to preserve a variance issue? I'd argue that it does, since it is not a sufficiency error but rather a notice problem. Does this mean that failure to prove venue can never be grounds for an acquittal? Seems as if.
In fact, it seems almost too good to be true, and that bothers me, especially in light of the authority cited in Judge Womack's concurrence.
[This message was edited by John Rolater on 04-01-02 at 11:30 a.m.]
[This message was edited by John Rolater on 04-01-02 at .]
John may be on to something when he suggests an objection to a variance is now required. Also, the prosecution may not be harmed by the new "interpretation" of Malik.
But even if Gollihar, i.e., variance law, is a matter of state law alone why fling Malik onto the same uncertain ground. Are we now left with two standards for legal sufficiency of the evidence, Jackson and Malik? If so what's the difference? Why do we need two standards? We have only recently discarded Ex parte Duffy and, we may hope, Bauder will soon follow the same demise, will Malik sink away too? I find the majority opinion raises more questions than it resolves.
Matthew: Is a motion for rehearing in the works?
Frankly, I don't care if they call it federal or state law. That is the sort of detail work that leads to far too many law review articles. The point, to me, is that the Court continues to recognize that there must be some reality injected into any discussion of whether someone was unfairly convicted. And misplacing a number in a serial number or using the defendant's dad's nickname is not worthy of cutting loose a criminal.
John Bradley
District Attorney
Williamson County, Texas
Also, I have serious doubts that the majority's characterization of fed constitutional sufficiency law will withstand scrutiny. Can it really be right that the evidence will be deemed sufficient even if we allege D murdered X with a knife, but proved D murdered Y with a gun?
But, again, maybe I'm just a near-sighted appellate geek seeing boogie-men lurking in the trees when the forest is quite safe and State-friendly.
More to the point, does Fisher still have any vitality and, if so, where does it lie in the newly revised framework of two stds for legal sufficiency? Is it now the vehicle for applying the federal std?
Maybe Fuller is a case that will simply be overlooked in the future. But I must admit to feeling troubled that we may have won the battle in Fuller but are in danger of losing the war we were close to winning. Why did the majority go to the trouble of deciding something that did not need reaching if a bigger plan was not envisioned?
Okay, I see little black helicopters too (and they can be heard in the forests on especially dark nights) but so do those evil guys in Afghanistan and I hope they are not simply paranoid.
[This message was edited by John Stride on 04-03-02 at .]
And Bradley, that's not like you to be unconcerned. Maybe if this was a misdemeanor or something...
I compare it to the self-inflicted wound of Factual Sufficiency Review. Through a series of poorly reasoned and defense-oriented opinions, the Court of Criminal Appeals found a state constitutional standard for reviewing factual sufficiency of the evidence. It is bothersome and will continue to rub us the wrong way until it is abandoned, abolished, or ignored. But, the bottom line is that it will rarely result in a serious injustice (meaning release of a truly dangerous and guilty bad guy).
So, in the great scheme of things, if I have to pick and choose my fights, I am pretty happy with the progress of the Court of Criminal Appeals as it pertains to the reality-based application of criminal procedure.
Does this mean I won't take opportunities to shoot down the momentary misdirection of a Fuller? No. But I also won't declare war on the Court over it. I want them in my corner for the next case.
By the way, my feelings of generosity might be influenced by last week's decision in Wiley v. State. Without any dissenting opinions, the Court of Criminal Appeals affirmed a conviction from Williamson County, rejecting a Keith Hampton claim that we had violated the 6th Amendments "right to present a defense" by excluding speculative evidence that someone else burned down the defendant's restaurant. Sometimes, you've just got to enjoy the victory.
And, as for Matthew Paul's self-described geekness, I disagree. I am very proud of the work that the State Prosecuting Attorney's Office is doing. For many years, prosecutors were not represented well in that office. Today, we have a well-trained, professional attorney who has a magnificent staff to watch over our territory. Perhaps that is why I can relax and enjoy the view a little more.
John Bradley
District Attorney
Williamson County, Texas
John Bradley
District Attorney
Williamson County, Texas
Viewing new decisions with a critical eye is not a declaration of war on the court issuing the decision or the judge authoring it. A bad rule is a bad rule even if the State wins the judgment. None of these posts advocates burning black-robed effigies or voting against Judge X next Tuesday or in November. No war, no fight, just critical examination of something us law geeks may be stuck with for many years, something the elected bosses may not understand . . . laughs.
Although there are many reasons to attack the decision, for me the simplest reason is that the voters of Texas never intended to expand a civil sufficiency test to include criminal cases when they expanded the jurisdiction of the intermediate appellate courts to include criminal cases.
For a hundred years, the appellate courts had developed the civil sufficiency test in the context of civil cases. And then, suddenly, the CCA decided it also applied to criminal cases without any examination of the application of that test, which was meaningless in the criminal context.
And that is why it makes so little sense. And that is why eventually someone will have the courage to say, this doesn't fit.
John Bradley
District Attorney
Williamson County, Texas
[This message was edited by Martin Peterson on 04-07-02 at .]
The more I think about Fuller, the more I am of the opinion that its effect is largely beneficial. Though I do believe the opinion sets up two independent sufficiency standards, state and federal, it also hints that even where there is a material variance under the state standard, the appropriate remedy is a new trial, not an acquittal (which was our state disposition for insufficient evidence Burks and Green).
And maybe I, too, am getting kinder and gentler in my old age (or perhaps I'm just in a good mood this week because I like Kutzner and Franklin), but I think we have a pretty good CCA right now. Keller is doing one hell of a great job as P.J., and folks like Hervey and Cochran are going to be shining stars for years to come.
Matthew
And now let's all have a moment of silence for the other race.
John Bradley
District Attorney
Williamson County, Texas
Everyone seemed to know I was using Latin, so what's the problem? I thought it was mandatory to speak some other language to have any chance of understanding the law of variance. And be careful, I also know karate (and a few other Japanese words).
[This message was edited by Martin Peterson on 04-13-02 at .]