The Volokh Conspiracy

Pena v. State (Tex. Ct. App. May 2), holds that the Texas Constitution provides defendants with more rights to relief than the U.S. Constitution in cases where the prosecution had inadvertently destroyed evidence. Here are a few sentences from the opening two paragraphs of Chief Justice Gray's dissenting opinion (some citations omitted):

"As a dog returns to its vomit, so a fool repeats his folly." Proverbs 26:11. As the majority did in 2005, the majority again reverses Pena's conviction, and holds that the trial court erred in overruling Pena's objections to the testimony of Texas Department of Public Safety criminologist Charles Mott and related evidence without giving a jury instruction unknown to Texas law.... Pena's brief on remand adds nothing, but merely regurgitates the majority's analysis in Pena I....

The majority's opinion glosses over two properly dispositive parts of the analysis, namely preservation of error and harm, in less than a page each, in order to publish its thirty-six page, mediocre law-review article on the merits of Pena's issues under the Texas Constitution....

The majority responds, in footnote 27: "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.'"

What's going on there in Waco?

	[Eugene Volokh, May 9, 2007 at 2:29pm] Trackbacks Yow: Pena v. State (Tex. Ct. App. May 2), holds that the Texas Constitution provides defendants with more rights to relief than the U.S. Constitution in cases where the prosecution had inadvertently destroyed evidence. Here are a few sentences from the opening two paragraphs of Chief Justice Gray's dissenting opinion (some citations omitted): "As a dog returns to its vomit, so a fool repeats his folly." Proverbs 26:11. As the majority did in 2005, the majority again reverses Pena's conviction, and holds that the trial court erred in overruling Pena's objections to the testimony of Texas Department of Public Safety criminologist Charles Mott and related evidence without giving a jury instruction unknown to Texas law.... Pena's brief on remand adds nothing, but merely regurgitates the majority's analysis in Pena I.... The majority's opinion glosses over two properly dispositive parts of the analysis, namely preservation of error and harm, in less than a page each, in order to publish its thirty-six page, mediocre law-review article on the merits of Pena's issues under the Texas Constitution.... The majority responds, in footnote 27: "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.'" What's going on there in Waco?