Fifth Circuit Court of Appeals
Texas Tribune v. Caldwell County
No. 24-50135 11/15/24
Issue:
Did the plaintiffs (two newspapers and an advocacy group) show a substantial likelihood that the county’s policy of excluding access to the press and public of magistration proceedings run afoul of the First Amendment’s right to access?
Holding:
Yes. To determine whether magistration proceedings fall under the protection of the First Amendment, the Court employed a two-factor test called the “experience and logic test.” The experience prong investigates “whether the place and process have historically been open to the press and general public.” The logic prong analyzes “whether public access plays a significant positive role in the functioning of the particular process in question.” Here, the Court found that the experience and logic test weighed in favor of open bail hearings, and therefore magistration proceedings by extension fall under the First Amendment’s right of access protections. Read opinion.
Commentary:
The gist here is that counties or municipalities can’t exclude the press or the public from magistration and preliminary bail proceedings without violating the First Amendment’s right to access. This is a logical extension of existing jurisprudence that has held that the First Amendment’s right to access/attend criminal trials applies not just to the actual trial, itself, but also to pretrial matters like suppression hearings, plea proceedings, bail-reduction hearings, etc. In some counties or cities, magistration might occur in a portion of a jail or other secure building; if that’s the case where you practice, beware of this case and the potential for a similar First-Amendment-based lawsuit if sufficient accommodations are not made to allow the press and public reasonable access to attend the magistration proceedings.
Texas Court of Criminal Appeals
Nixon v. State
No. PD-0556-23 11/20/24
Issue:
Was the use of an auxiliary courtroom located in the same building as the county jail and sheriff’s office inherently prejudicial to the defendant’s presumption of innocence in his capital murder trial?
Holding:
No. The Court concluded that holding the defendant’s trial in the auxiliary courtroom “was not inherently prejudicial to his presumption of innocence because the jurors need not have interpreted the setting of his trial as a sign that [the defendant] was either culpable or dangerous.” Read opinion.
Dissent (Walker, J.):
“It is not a courthouse that happens to have jail facilities inside of it. Nor is it a structure in which a courtroom shares ‘the same building where the jail and the sheriff’s department were located,’ such that they are all separate facilities. … It is a jail.” Read dissent.
Commentary:
The CCA did not rule that a proceeding in an auxiliary courtoom in the same building as a jail or other law enforcement entity would never taint the presumption of innocence, only that it did not in this case. If you’re faced with a similar issue, apply the test that the CCA articulates here: (1) Is the location of the auxiliary courtroom inherently prejudicial to the presumption of innocence because it would necessarily be interpreted by the jury as a sign that the defendant is particularly guilty or dangerous? If so, (2) is the use of the auxiliary courtroom “nevertheless justified by an ‘essential state interest[,]’” such as substantial security or logistical concerns? Although the outcome of this case turned on the CCA’s assessment of the first part of this test, after which subsequent analysis was unnecessary, the preferred practice would be to develop a record that contains evidence related to both prongs, just in case.
Swenson v. State
No. PD-0589-22 11/20/24
Issue:
In a prosecution for attempted capital murder, did the defendant cross the line from “mere preparation” to attempt?
Holding:
Yes. The Court noted that to make such a determination is a very case-specific inquiry and requires an investigation into the facts of each case. Here the Court concluded that the defendant did cross the line from “mere preparation” to attempt because the defendant expressed an intent to kill and began hunting a particular individual. The Court’s finding was based on the following facts: “(1) having expressed an intent to kill a police officer, [the defendant] drove around in his vehicle searching for a potential victim; (2) after spotting a police vehicle, and with an expressed intent to kill, he drove to the place where he had spotted that vehicle; and (3) he had within easy reach at least one loaded firearm with a round in the chamber.” Read opinion.
Dissent (Walker, J.):
“For all of the smoke he blew for his online viewers, and for whatever may have been going on in his own mind, objectively he did no more than drive around Texarkana with guns in his car.” Read dissent.
Dissent (Slaughter, J.):
“[The defendant]’s actions and words in this case are despicable, disgusting, and horrific. I am completely appalled. But that does not change the fact that the statutory language, by which we are bound, does not support an attempted capital murder conviction here. There is simply no way around the fact that, in a prosecution for attempted capital murder of a peace officer, the evidence presented at trial must be legally sufficient to prove that [the defendant] did “an act amounting to more than mere preparation that tend[ed] but fail[ed] to effect the commission of the offense intended” (emphasis in original). Read Dissent.
Commentary:
As the CCA explains here, one of the main goals of the law of criminal attempt is to give the police a margin of safety to intervene while the intended crime can still be prevented. Toward that end, the CCA explains that close physical proximity or specifically aiming or brandishing a weapon at the target is not required to prove that the defendant crossed the “more than mere preparation” line. Here, the defendant’s efforts at “hunting” a specific police officer were the pivotal acts that carried him over that line, despite that other police officers were able to intervene before the defendant was able to take further actions to execute his plan to “beserk [sic] his way to Valhalla” by murdering the target officer. If you have a similar case, where the defendant “hunts” his intended victim but does not succeed in getting close enough to carry out his violent intentions, keep this opinion in mind as a prime example of when (and why) close proximity or a near-miss are not required to substantiate a criminal-attempt conviction.