Voters have an opportunity in this election to shake up the all-Republican Texas Court of Criminal Appeals, where three justices are on the ballot facing serious, well-funded and reform-minded challengers. All the incumbents on the ballot are white, Republican and male.
We recommend two challengers and one incumbent in the endorsements below. We do so, in the first place, because we believe they are the strongest choices in each of the races. But guiding our evaluation, too, is a belief that the Court of Criminal Appeals, the final word on the thousands of criminal cases heard in Texas each year, will do a better job with a more robust exchange of ideas and perspectives among its nine members.
A court’s legitimacy derives in part from its capacity to inspire trust in the minds of those who live by its rulings. “There cannot be a trust among the African American community that the system is fair when the judges dispensing that justice are all represented by just one group,” Judge Tina Yoo Clinton, a Dallas County district court judge whom we recommend for Place 4, said last month at a virtual forum organized by the Innocence Project of Texas. She was noting that there are currently no Black justices on the court, and just one of nine members is Latino.
It’s a valid point, but it’s also true that in the context of the Court of Criminal Appeals, diversity must also include a broader range of ideological perspective and of life experience. That’s because how a judge sees the law — and how he or she applies it to a particular case — is far more complex than sound bites about “activist judges” or labels such as conservative and liberal.
Two honest and well-educated judges can apply the same law to the same set of facts and come to different reasonable interpretations.
That said, it’s important to acknowledge that even within the all-GOP court, new voices have begun insisting old certainties be re-examined.
Consider the question of “actual innocence” and the broader debate of how newly discovered evidence, especially DNA, has led to nearly 3,000 exonerations since 1989, including nearly 300 in Dallas and Harris counties. In 2013, Houston Sen. John Whitmire led the Texas Legislature to recognize that trend, and codified new statutes that dealt with convictions that had relied on “junk science” and other discredited evidence.
Since then, the state’s highest criminal court has nevertheless been slow to declare former inmates “actually innocent” even when they have successfully shown that they were wrongfully convicted and imprisoned. The Innocence Project of Texas points out that the court has done so just 10 times, out of hundreds of cases. Some justices have emphasized that many of those convicted, even if their convictions were based on discredited evidence, aren’t actually innocent, at least not “factually, historically or morally” innocent.
Justice Kevin Yeary used that language in a December 2018 opinion. “The tragedy of a wrongful conviction is not the same as the conviction of an ‘actually innocent’ person,” Yeary wrote. “The conviction of an actually innocent person is far more troubling and causes a far deeper wound to the integrity of our system.”
Both of the other incumbents on the ballot in November — Justice Bert Richardson of San Antonio and Justice David Newell of Houston — wrote to oppose Yeary’s thinking in that case, and good for them. The court has already acknowledged that existing laws make it a “herculean task” to win an “actual innocence” declaration.
We’re eager to support the growing debate among the all-Republican court even as we push for a broader set of vantage points in order to deepen and enrich that discussion.
“It comes down to how you view the system,” Ohio State law professor Douglas Berman told the editorial board. “If you think the criminal justice system is rife with bias and errors, then you are going to push hard for testing as many convictions as you can. But if you believe that the system, while flawed, mostly gets it right then you probably are going to be a lot less willing to subject every conviction to a new round of scrutiny every time technology changes.”
We think that a court works well when its members bring perspectives from across that spectrum, and marry them with a rigorous commitment to following the law as they see it.
These three candidates will help achieve that balance.
Place 3, Bert Richardson (R)
Bert Richardson, 64, is seeking a second term. Since joining the court in 2014, he has earned a reputation as a thoughtful, diligent member.
That’s no surprise. Before his election he served 10 years as an elected district judge in San Antonio and then, when a Democratic sweep put him off the bench, as a visiting trial judge filling in wherever the state needed him.
That’s how he ended up face-to-face with former Gov. Rick Perry’s presidential ambitions. In 2014, Perry was indicted in Travis County on corruption charges — charges his supporters thought should be summarily dismissed. But Richardson, still a trial judge at the time and despite heavy political pressure, refused to short-circuit the system and ruled that the case should proceed. He’d later be reversed by the court he now sits on, and Perry’s charges were dismissed in 2016.
But what stood out was Richardson’s refusal to be intimidated. He continues to show this independence.
His opponent, Dallas-area lawyer Elizabeth Davis Frizzell, is a former municipal and district court judge and former criminal defense attorney. She makes a strong case for a more diverse Court of Criminal Appeals and would be the only African American on the court.
“Texas should have balance in the judiciary, especially on the highest criminal court in the state,” Frizell has said.
We agree, but in this case her opponent has served with distinction and we believe voters ought to keep him on the bench.
Place 4, Tina Yoo Clinton (D)
Tina Woo Clinton, 50, has more than 14 years experience as a judge and 10 more as a prosecutor. She brings a combination of a veteran judge’s experience and the enthusiasm and fresh perspective of a newcomer. It’s exactly the mix the court needs.
For that reason, we recommend her over Justice Kevin Yeary, who has been on the court since 2014.
“Clearly when you look at what is going on in the United States within the criminal justice system, we have to recognize that even though we want justice to be colorblind, it is not colorblind,” Clinton said during last month’s candidate forum.
That’s a starting point that will help shape the discussions among the nine justices in ways that keep fairness at the center of the debate. Matched with her long experience and commitment to follow the law, we believe she will help render justice in which all Texans can have faith.
Place 9, Brandon Birmingham (D)
We recommend voters elect Dallas County criminal district court Judge Brandon Birmingham, 43, in Place 9, even at the high cost of losing Justice David Newell, whose voice on questions of actual innocence has been reasoned and refreshing.
But he adheres to the court’s overall emphasis on textualism, and approaches each case within a narrower view of what justice requires than would his opponent. The court’s nine members urgently need new perspectives, new sets of life experiences, and new vantage points from which to see the law and the facts in order to render decisions that have credibility with an increasingly skeptical public.
Birmingham would stretch the boundaries of that debate — and would do so using experience as a judge, a prosecutor and a change agent.
Birmingham worked more than a dozen years as a prosecutor before his 2014 election as judge, including in the Dallas DA’s office of conviction integrity. That unit drew enormous national praise — and intense pushback from traditionalists — for its determination to get inmates out of prison when evidence showed they didn’t commit the crimes that put them there. That firsthand knowledge of how even trials that contain no legal errors can still send innocent people to prison will be invaluable on the Court of Criminal Appeals.
Birmingham notes than none of his more than 100 trials in which he’s been the judge have had verdicts reversed, and that no case he prosecuted has ever led to an exoneration.
He’ll also be a voice for bail reform across Texas. “If you have money, you get out of jail on a pre-trial basis,” he said during the candidate forum last month. “If you don’t you can’t. … I am going to use my platform if elected to try to fix that.”
As a prosecutor and as a judge he’s been tough on criminals and willing to insist on justice for those who’ve been wrongly convicted. He knows how the system should work — and how it often doesn’t. We recommend voters put him on the Court of Criminal Appeals.