Judge Michael McC _ nick - Voice For The Defense Online

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area of the criminallaw, I usually wenttoone ofyouropinwns becanse they seemedto contain an historiealperspective ofthelaw. Is that something you have alwaystriedto do as ajudge? Give lawyem an hktoricalperspective of the mqior areas ofcriminal law?Judge Onion: Yes, because I like thatas an approach to use in trying to understandsomething. It's always helped meand I guess I've always felt like if I'mgoing to have to do the research, I wantsomebody else to have the benefit of itwithout having to plow through the sameground. If they can find an opinion of minetbat would take them through, and I try tobe as thorough as I can. I think that meansI've tried to keep in mind that in writingopinions, you write for a whole bunch ofdifferent groups. You write for the partiesand for the trialbench. And then, of course,you have to keep in mind that youropinions may be of some help to the lawstudent. I've always kept something elseinmind that I haven't always been successllin selling to other judges. That is yon try towrite an opinion that's understandable tothe press because if the press doesn't understandit, they'll give you lots of badaverage, publicity, when you're just asright as you can be. But if you haven'tmade it clear so that the unhained lawyeror the non-lawyer news media has difficultyunderstanding it, thcn you may cnd upwith a lot ofouestions about vouroninion.Then I guess, being a trial judge, I alwaysthought that it always helped to put a littlefwtnoteor something inthat tells themthisis theway it might save youquestions lateron at the trial of some other case.BW: So you feel like these opinionsshouldhe@givegiridanceto both lawyersand trial jndges on how to conduct theirbusiness?Judge Onion: Oh, yes, absolutely. Ithink that's the main purpose of writingone of these opinions. The main purpose,of course, is to dispose of the case and doso rightly, but I think in the process, if youcan aid the bench and the bar in the trial offuture cases, keep in mind that some lawstudent may be readmg your case, may behelping him to learn the law, and also keepin mind the court canbe saved alot of uglypublicity if the non-lawyer news reportercan understand what you're talking about.BW: I never thoughf of writing fortheunderstanding of the press.Judge Onion: Oh, yes, and sometimesI've said that to judges, "The way you'vegot it phrased here, it's going to wave aredflag-you'reright, butthe way yon'vegotit phrased is going to make a hunch ofpeople mad about it. Write it, explain it alittle bit better." And a lot of times judgeshaven't always agreed with me on that approach, but I think thosearethings that I'vetried to keep in mind.BW: I think the bench and bar wouldbe interested in knowing what actnalprocess yon go through in researchingand wriring an opinion.Judge Onion: It depends fmt of allwhether or not we've had oral argument. IfI'veheenexposed to acase through oral argument,and having read the benchmemorandum before I heard oral argument,I know something about it beforehand.If not, if I'm getting the case fresh, Istart just lie1 do with all cases in readingthe briefs and getting a feel for what the issuesare; I don't take one ground of error,I read through the entire brief because lotsof times, you find working only on oneground of error, you find that you're overhkingsomething that relates to anothcrone. So1 trvtorcadthc bricfsoibothsidcs.get a pre& good idea of what the issuesare, all the issues, and then I read therecord. And I think this is important. Manytimes people ask me as an appellate judge,"Do you read the record?" Not only do Iread therecord, hut Iread it maybe two andthree times. And sometimes the answer tothese points of error are very simply statedin the record. Very clearly in the record.They may not have been pointed out in thebrief, or they've been overlooked in thebriefs. I think answers to some of yourtougher questions are found simply byreading the record. Then I start my individualresearch trying to group the pointsof error that are related, but to answer eachand every one of them and to thoroughlyresearch the case. We find many times thebriefs are just kind of an assistance to getus started. A lot of times, we really have todo theresearch afterthecasegets here. Andthen after that's thoroughly done, then ofcourse, we try to put it into a draft opinionthat we will feel fully answers the points oferror and also will meet with the majority'sapproval. It doesn't serve any purpose towrite something way off out of themainstream and way off wme, hopingthat maybe the court will go along withyou. You realize that you've got a courtand the majority may say take it back andrewrite it, we won't go along with this.BW: So you take into considerationthe otherjudges' points of view from thebeginning.Judgeonion: Yes-that doesn'tmeanthatI'mgoing to change my outlookon thething, but I wouldn't go out and put somethingway out that I think is not goingthrough conference.BW: If you conld choose an idealbackground for an appellate judge, whatsod of background would it be?Judge Onion: I think he should first bea criminal trial judge with a few years experiencebefore he comes up here. I don'tsay that youcan't beagood appellatejudge 'or even a great appellate judge withoutthat, but1 thinkthat experienceis soimportant,I really do. I've told one legislativecommittee that I wouldn't write that in asa requirement, but as I get older in dealingwith more judges who are very sincereabout what they're looking at in the recordbut had no trial judge experience, I'm almostinclined to think tbat it maybe oughtto be a prerequisite to being on the appellatebench.BW: Al~mst all the appellate judgeshere have litigant experience as either apmsecntor ordefense lawyer, don't they?Judgeonion: Yes,they do. But it's sortof like the judge who was appoint6 to thetrial benchshortly after I went onto districtcourt. He was appointed to another districtcourt and he was a lawyer with many yearsof experience, and he came in to see me andsaid, "What do you say to a guy when youtake the guilty plea? I've been there 100times but Inever listened to whatlhe judgesaid, so please tell me." You can have a lotof experience in the Rial court as a lawyer,defense lawyer or prosecutor, but sometimesyou don't realize why the judge is6 VOICE for the Defense I January 1989
saying what he says.BW: If gives you a much befferfeel?Judge Onion: I thii it gives you amuchbetterfeelwhenyou'relookingat therecord.BW: You were a trial jdge for manyyears; didyou like being a trialjudge betterthan you've liked being an appellatejudge?Judgeonion: IS& both. I thinkit wasreal hard when1 first wneup to the appellatecourt not to be a little sow that I hadleft the trial bench. You were a judge onyour own down there, you called themlikeyou saw them, if you thought somethingwas right, you did it that way. Up here youhadto have amajority voteand sometimeswhat you thought was right was voteddown, and it's p~tty hard to take at times.But then after awhile, you get accustomedto it. I think Judge Tnunan Roberts took alot longer to adjust than I did. He had beena trial jndge a long time, too; and so, yes, Ithink the trial judge position is an enjoyableone. You get to see the lawyers andwitnesses and jurors, and youdeal with thelawyers and the people around the courthouse.All of that is gone when you get toan appellate court.BW: Which one do you think is theharderjob?Judge Onion: This one. Well, it's liethe former appellate jndge who said thatsomeday he was going to go back to thetrial court because down there he couldshoot and nm, up hem he had to stay stjuand write the reasons. I think that's true, Ithink you can call it as you see it if youthink it's right, you can say overruled orsustained, you can issue what orders youthink and go on about your businass. Youdon't have to research to give what youthink is the right answer, sometimes on avery meager record. And I think lots oftimes, triallawyers don't realize that whpthey'resending questians upthat theyreallywant answered, they don't call all theirwitnessesthat they need and whenthey dohave the important witnesses there, qeyleave a lot of questions hanging. A lot oftimes I don't think they review their cases,either. That'smy opinion. They oftendon'treview their cases and see what they needto ask, so if they ask just what comes tomind at the time and thenexpect us to takea meager record and lay down a hard andfast rule for all the courts to follow. Itmakes it very difficult. So, yes, this workuphereis muchharder. IknowI'veworkeda lot harder. I thought I was a very busy,energetic, hadworking trial judge, and itwasn't anything compared to what I'vedoneup heretokeep up overthe years. I'veworked nights and on the weekends. Istarted taking cases home becauseat first Ithought I was too slow in getting myopinions out and because all of the judgesat that time had been here for some timeand they seemed to be turning out theiropinions faster than I, so I started takingwork home. Twenty-two years later, I'mstill doing it, but I'm a hell of a lot fasterthan I used to be.BW: Overthe course of ZZyears, whatopinions ofyoum do you believe are yourbest work or are most sigmifcanf in theklw?Judge Onion: Oh, gee, I've wfittenover4,50Oopinionsinthe22 yearspndit'shard to pick out particular ones. I wouldthink that one case would be Olson 1484S.W.2d 756 -holding that compelling ablood test and handwriting exemplar donot constitute compelling an accused to"give evidence against himself' in violationof the Texas constitutional self-incriminationprivilege]. Perhaps Martinez[437 S.W.2d 8421,abouttheseparatehearingrequired, on challenged eyewitnessidentificatidn testimony would be anotherone. Yes, those are a couple that havelasted. In the past,I1ve written an opinionandit's lasted fot 10 or 12 years, and thena new majority comes along and overrulesthe case, hut those are the cases that havelasted and westill quoted by many COW.BW: Just as amatterof interest, doyourecall the most bizam case that you'veencountered?Judge Onion: One that always sticksout inmy mind is one1 mn't write. JudgeDailey wrote on a case 6ut of Harris Countywhere the jndge charged the jury on theextraneous offense and ignoredthe chargein the indictment. I thinkthat was the mostunusualthatIcan think of off the top of myhead. Thejudgechargedthejurytofind thedefendant guilty if they believedbeyond amisonabledoubt that he committed anextnurw,usoffense.BW:l hwe always wondered whetherpersuasive writing of the brief or persuasiveoml argument has any eflect onthe outcome of cases that come to theCourt.JudgeOnion: I think if it's a well-donebrief and it's wen-organized aud movesswiRly and concisely to the point that heseeks to advanceand is persuasive, you dotake a longer, harder look at it than if it'snot very well put together. Now oral argumentpeople are not going to likeme to saythis, but there have been few cases everchangedby oralargument. Many attorneyscome down here and argue, but they a@sayingusually what's already intheirbrief.In other words, very few cases are everchanged onthe basis of oral argument. Thereal value of oral argument as I view it isthat when you request oral argument,there's a bench memorandumdone by ouradministrativeassistant~,thejudgesreaditthey hear oral argument, and when someotherjudge draws that case and then c d-lates an opinion, they say, "Wait a minute,that's a little bit different than the case Iheardargued" or"Didn'theraisethis pointthat you haven't covered?" So, I think ithelps to prevent what aU appellate courtsseek to avoid, is a one-judgedisposition ofthe case. So oral argument I think is helpful.But as far as changing opinions, I'mnut sure it really does all that much gwd.BW: Would it be your advice todefense lawyers to no#filltheir brief withpoinfsthatdon'the agreaf dealof meritand limit their attention to their mostmeriforiouspoints?Judge Oninm Absolutely. I would alsosay something else. I never understand attorneyswho put their best pint of errornumber 16 in 32 paints of error, becauseyou plow through, and you find one afteranother that seems meritless, and prettysoon you say, "Well, this fellowhas alargeVoice AdvertisersClassified Ads . . . . . . . . . . . . . 9FreelanceEnterprises . . . . . . . . 15January 1989 I VOICEfor the Defense 7
Page 1 and 2: Judge Michael McC _nick*WELDON HOLC
Page 3 and 4: President's ColumnLas Vegas! Please
Page 5: Talking With.. .by Bill WhiteOn Jan
Page 9 and 10: are five judges that want to try so
Page 11 and 12: themsinceI'vebeenhereissoflofaliais
Page 13 and 14: son v. State, 661 S.W.2d 708 (Tex.C
Page 15 and 16: ANNOUNCING THE 1989 EDITIONS OF THE
Page 17 and 18: granted.Judge Onion further argued
Page 19 and 20: Warrantless Searches and Seizuresby
Page 21 and 22: ARlZONA V. YOUNGBLOOD,No. 86-1904,
Page 23 and 24: DOUBLE JEOPARDY - ENHANCEMENT - RET
Page 25 and 26: FACTS: Police cavtain testified at
Page 27 and 28: Opinion by Judge Teague; November 2
Page 29 and 30: that the defendant appeared to be c
Page 31 and 32: they were stolen, read and recorded
Page 33 and 34: ~ ~~~~ ~(Tex.Crim.App. 1970); see a
Page 35 and 36: S.W.2d 387, 388 (Tex.Crim.App. 1977
Page 37 and 38: to state an offense) and would besu
Page 39 and 40: ject isallowed to wtfor a short per
Page 41 and 42: A Comparison of the Public Defender
Page 43 and 44: List of Granted Petitions for Discr
Page 45 and 46: Supreme Court interprets the corres
Page 47: TCDLEl Building FundThe Texas Crimi

Judge Michael McC _ nick - Voice For The Defense Online

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