IN RE: State of Texas ex rel. Brian Risinger

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Court of Criminal Appeals of Texas.

IN RE: State of Texas ex rel. Brian Risinger, Relator

NO. WR–84,212–01

Decided: March 23, 2016

After spending considerable resources to address the late pleadings, today this Court finally reaches the decision that was plainly evident to me based on my review of the record months ago.  I, therefore, join the instant order in which this Court properly declines to impose sanctions on Holiday's attorneys Frank Blazek and William F. Carter.  I write separately to briefly expand upon my rationale.

I. Background

On the day of Holiday's execution, the trial court halted the scheduled execution.  The trial court had found counsel's motion to withdraw the scheduled execution date meritorious, and the execution was called off.  The State responded to the trial court's order by filing a petition for a writ of mandamus in this Court late in the afternoon on that same day.  Holiday's counsel filed a detailed response to the State's petition, arguing that there was no binding precedent from this Court that supported overturning the trial court's order.  Within twenty minutes of receiving counsel's response, this Court's majority order granted the State's petition.  Thus, all within the span of a single day, Holiday's scheduled execution date was withdrawn by the trial court and then later reinstated by this Court.

On the night of Holiday's execution, another judge on this Court and I each dissented from this Court's majority order that effectively compelled the execution to proceed despite the trial court's contrary ruling.  I issued a dissenting statement explaining my view that the law was unsettled as to whether the trial court was authorized to withdraw the scheduled execution date and, thus, the State was not entitled to mandamus relief.  The other judge dissented without opinion.

Several weeks after Holiday's execution, this Court issued its show-cause order requiring Holiday's counsel to appear before this Court to more fully explain their reasons for the late filing.  I again filed a dissenting statement, and the same judge who had dissented on the night of the execution filed a concurring statement.  As I explained in my dissenting statement at that time, and as the concurring statement agreed with me, this Court's majority erred in its execution-night ruling because it should have denied the State's petition for mandamus relief and instead allowed the trial judge's order to stand.  Thus, my dissenting statement and the concurring statement agreed on the important matter that Holiday should not have been executed that night, although we each reached our ultimate conclusions by different rationales.  Regarding my view that the issuance of a show-cause order was, under the circumstances, wholly unnecessary, I explained that the “particular facts of this case show that Blazek and Carter did not exhibit the kind of flagrant disregard for the rules that would justify sanctions.”  See In re State ex rel. Risinger, No. WR–84,212–01, 2015 WL 9148205, at *22 (Tex.Crim.App. Dec. 16, 2015) (Alcala, J., dissenting).  I expressed my concern that sanctioning counsel “carries with it the possibility of a chilling effect on attorneys who might otherwise be willing to represent capital-murder defendants.”  Id. at *23.  The concurring statement, however, suggested that the better course was to wait to hear from counsel before deciding whether to sanction them.

II. Analysis

I remain convinced that the show-cause hearing itself was unnecessary and inappropriate in this case.  Although counsel conceded at the show-cause hearing that their good-cause affidavits were inadequate to explain their late filing, it was abundantly clear to me, based on having reviewed the entire record prior to the hearing, that counsel did not have the intent to behave contemptuously or to flagrantly disregard this Court's rules.

The matter before the Court a few months ago was whether to order the show-cause hearing at all.  The choice before the Court at that time was whether (1) not to issue the show-cause order because, based on the existing record, there were adequate facts to excuse the attorneys' late filing in this case, or alternatively (2) to issue the show-cause order because the existing record suggested that the attorneys should be possibly sanctioned for their late filing.  In my dissenting statement, I explained my rationale for voting against the issuance of the show-cause order, including a lengthy discussion of the facts that existed in the record prior to the show-cause hearing that were adequate to show that Holiday's attorneys filed their motion in the trial court at the earliest possible opportunity after learning that Holiday's appointed counsel had effectively abandoned him and that Holiday was in need of counsel.  I explained that the mere ordering of a show-cause hearing at which counsel is compelled to appear to face questioning by this Court has the likely effect of chilling the behavior of other attorneys who might otherwise be willing to provide free representation for indigent capital-murder defendants facing imminent execution.  Thus, the mere issuance of the show-cause order, and not the sanction alone, may result in a chilling effect on the defense bar.

Just because an attorney files something late does not mean that this Court should conduct a show-cause hearing, much less hold the attorney in contempt.  This Court should examine the totality of the circumstances in the record to decide whether an attorney's actions were so extreme that they rose to the level of being contemptuous.  The question is not whether a rule was violated.  Rather, the test for contempt requires something extreme and willful.  Mistakes, even big ones, are not the equivalent of contempt.  Contempt hearings should be rarely conducted, and I suspect that most judges in Texas have never held one.  Yet, in approximately the past year, this Court has held two of these hearings, both of them occurring as a result of late filings in death-penalty cases.  Even if this Court eventually decides not to hold attorneys in contempt, as here, I am concerned that this Court's practice of holding show-cause hearings under these circumstances may itself become a tool of submission against the criminal defense bar.  A show-cause hearing and a decision to hold a lawyer in contempt should, at most, be a once or twice in a judge's career type of event, but it seems to be becoming a once or twice a year type of event in this Court.  This is concerning in that there are a dozen or so executions each year, and even one or two show-cause hearings are greatly disproportionate to the number of those cases.

As an alternative to this Court's practice of holding show-cause hearings in these situations, this Court could instead consider the possibility of referring lesser violations of this Court's seven-day rule to the State Bar of Texas so that it may review the attorney's behavior.  There are rules in the Texas Rules of Professional Conduct designed to regulate attorneys' behavior to ensure that they behave ethically, and all attorneys are well-aware that they are compelled to adhere to these rules or face possible sanctions for violating them.  Rule 3.02 states, “In the course of litigation, a lawyer shall not take a position that increases ․ burdens of the case or that unreasonably delays resolution of the matter.”  Rule 3.04(d) mandates that a lawyer shall not “knowingly disobey ․ an obligation under the standing rules of ․ a tribunal.”  This Court, therefore, could reserve its contempt power for only those extremely egregious circumstances in which it is necessary for this Court to intervene to preserve the integrity of the judicial branch.  In my estimation, the State Bar of Texas could be entrusted to regulate attorney misbehavior in all but the most extreme circumstances that require judicial intervention through the power of contempt.  And, perhaps, the additional threat of facing sanctions from the State Bar might result in fewer violations of this Court's seven-day rule.

This Court has paid intensive and extensive attention to Holiday's attorneys' late filing.  As to whether Holiday's attorneys should be sanctioned, this Court, as a whole, has expended dozens of hours to address that matter as shown by these seven events:  (1) this Court's majority issued a show-cause order;  (2) a judge issued a concurring statement to the show-cause order;  (3) I issued a dissenting statement to the show-cause order;  (4) this Court held a show-cause hearing at which counsel appeared for questioning by various judges;  (5) this Court is issuing the instant majority order;  (6) I am issuing my instant concurring statement;  and (7) the same judge who earlier issued a concurring statement now issues another concurring statement.  A question arises, therefore, as to whether this extensive amount of attention paid to the attorneys' late filing was warranted in this case.  With respect to that matter, I acknowledge that, during the live hearing, the attorneys conceded that their good-cause statements were inadequate to explain their late filing.  I observe, however, that it would have been inconceivable, at that juncture, for counsel to say anything but that.  Obviously, at that point, this Court's majority had already found counsel's good-cause statements inadequate because they had been summoned and ordered to appear before this Court.  When they made those concessions, they were being interrogated by judges of this Court and subject to serious sanctions.  Arguing that they should not have been made even to appear at the live hearing, the same hearing at which they were currently appearing, was a moot point.  And it likely would have been suicidal.  The very strange thing about a contempt hearing before this Court is that this Court is the complainant of the late filing, the judge conducting the live hearing, the jury deciding whether to sanction counsel and, if so, what punishment might be imposed, and then there is no appeal.  Given that the summons had already revealed that this Court found counsel's affidavits inadequate, arguing that the affidavits were adequate could have landed counsel in jail for contempt of court.

As to my substantive conclusion in this case, my point is simply that, as the federal courts and other Texas courts clearly understand, a show-cause hearing should be a measure of last resort for those extreme cases of contemptuous behavior.  Absent facts that would indicate that such extreme behavior had occurred in a case, this Court's scarce resources are better spent resolving litigation that might result in the release of an innocent defendant or the final resolution of a victim's case.

I do not believe that the current procedure of conducting show-cause hearings under these circumstances is desirable for this Court, the litigants, or the public's confidence in the judicial branch.  I would not have held the show-cause hearing at all in this case because the existing record was adequate to show that it was entirely unnecessary, given the lack of any indication that the attorneys acted contemptuously.  Although I disagree with this Court's decision to hold the show-cause hearing, I agree with its ultimate decision not to sanction counsel, and, therefore, I join this Court's order.

Alcala, J., filed a concurring statement.

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