EX PARTE LEWIS v. << (2023)

Today the Court orders briefing to determine whether Applicant is entitled to habeas corpus relief on the basis that one of the prosecutors who tried Applicant's case also worked for the District Judge as a law clerk at the time the District Judge presided over Applicant's death penalty trial. The answer to that question is “Yes.”¹ Further, both Applicant and the State agree that Applicant is entitled to relief, so I do not believe briefing on the issue will be helpful.² We should just grant relief and save the fight over whether to deny relief for when a truly questionable case arises.

With these thoughts, I dissent to the Court's decision not to grant relief in this case.

FOOTNOTES

1.   In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”); see also Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (“[e]very procedure which would offer a possible temptation to the average man as a judge ․ not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.”); Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (due process requires a neutral and detached hearing body or officer).

2.   See, e.g., Ex parte Lozoya, 666 S.W.3d 618, 623 (Tex. Crim. App. 2023).

Newell, J., filed a dissenting opinion in which Richardson, J., joined.