Delay Could Help Gay-Rights Forces Fight Sodomy Law in Court
June 10, 2000
801 Texas Avenue, Houston, TX 77002
By Steve Brewer
It could be next year before the Texas Court of Criminal Appeals reviews a decision to
overturn the states sodomy law, and lawyers say that helps gay-rights groups because
of an expected shift in the courts politics.
"You dont have to have the legal acumen of Ken Starr to realize this is a
substantial break for these guys," said Brian Wice, a local appellate attorney who
has argued before the Austin panel.
"Simply stated, youre trading out two of the most conservative justices on
the panel for what could be a pair of moderates."
The two conservatives Republicans Michael McCormick and Steve Mansfield
will leave at the end of the year, and their likely replacements are politically moderate,
according to court watchers.
Republican Charles Holcomb, a former appeals court judge from Tyler, is running for
Mansfields spot. With no Democratic opponent, he faces Libertarian Rife Scott
Kimball in November.
And Republican Barbara Parker Hervey, a San Antonio prosecutor, is facing Democrat
William R. Barr in November for the vacancy created by Justice Sharon Keller, who is vying
to replace McCormick as presiding judge of the all-Republican court.
Keller faces Democrat Bill Vance in November.
If the recent history of judicial elections in Texas means anything, Hervey and Holcomb
will win easily, says Wice and others. Kellers chances appear good, too.
Hervey and Holcomb could affect the courts conservative bent, which defense
lawyers bitterly criticize.
"The Texas Court of Criminal Appeals is a bizarre, bizarre place because its
so political," said Houston appellate lawyer Stanley Schneider.
In the courts history, he says, it has bent with political winds so much that
its not uncommon to find contradictory decisions from the justices that support just
about any position a lawyer wants to argue.
"The complexion of the court could be entirely different by the time this case
gets up there," Schneider said. "For the first time, in a long time, there could
be people listening. Theres no telling what theyre going to do and how
theyre going to do it."
Robert Morrow, another appellate lawyer who has argued before the high court, agreed,
though he said he knows little about the sodomy case.
"I think, generally, a new court gives us hope. We may have lived through the most
disappointing times," Morrow said. "Youd certainly think it would help
(the chances of throwing out the sodomy law) because you want people there who will listen
to you, think about your decision and realize why the law is wrong."
Harris County District Attorney John B. Holmes Jr. has said the 14ths decision
will be appealed. His office has 30 days to file a request for a review.
Its conceivable the current court could get the case in time to decide it before
the new justices come aboard, but no one thinks that will happen.
The request for review will be filed during the jurists vacation time, which can
stretch into the fall. If, as expected, the review is granted, the state has 30 days to
file a brief and defense attorneys have another 30 days to file a response.
The defense can also ask for an additional 30 days. That would delay the hearing until
the end of the year, and court watchers say its likely the justices will pass the
issue to the new court.
Holmes and Assistant District Attorney Calvin Hartmann say they never consider an
appellate courts politics when they appeal.
Holmes says the 14th Appeals Court was simply legally wrong to overturn the sodomy law
based on the fact that it violates the Texas Equal Rights Amendment.
"Maybe its na´ve of me, but thats not a question for me. I dont
shop or analyze the personalities. Maybe my client gets a bad deal out of that. Im
naive enough to think they will follow the law," Holmes said
Hartmann said considering such things would be "forum-shopping."
"I dont do that, like a lot of lawyers. There are nine people up there who
are elected by the people of Texas, and if we think a decision is wrong, we take it up
there no matter the composition of the court," Hartmann said. "Though quite
candidly, I wish I could forum-shop in the (local appeals courts) sometimes. But I
cant, so that doesnt matter."
Hartmann said the decision not to ask for a full review by all the justices on the 14th
Court of Appeals, which prosecutors could do, is not an attempt to get the case heard
before the court changes. He said its simply because a review by the full 14th would
probably bring the same result.
Neil McCabe, who filed a "friend of court" brief on behalf of the men
arrested on the sodomy charges, said putting things in a political context when talking
about the court is distasteful.
"I would have to agree that if the court becomes more moderate, the chances are
better (for having the decision affirmed)," said McCabe, a professor at South Texas
College of Law, "but I hate to put that kind of political terminology on it."
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