Reply Brief — Carmell v. Texas

Supreme Court, U.S.

g FIteED

| NOV 15 1999

No. 98-7540

_CLERK

In The

Supreme Court of the United States

¢

SCOTT LESLIE CARMELL,

Petitioner,

STATE OF TEXAS,

Respondent.

¢

On Writ Of Certiorari

To The Texas Court Of Appeals

S

REPLY BRIEF OF PETITIONER

¢

RicHarp D. BernsteIn*

Carter G. PHILLIPs

KATHERINE L. ADAMS

Paut A. HEMMERSBAUGH

Brian C. Katt

Siptey & AusTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioner

"Counsel of Record

November 15, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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1.

Il.

Ill.

IV.

RETROACTIVE APPLICATION OF THE 1993

AMENDMENT OF ARTICLE 38.07 FALLS

SQUARELY WITH THE CONSTITUTIONAL

PROHIBITION ON EX POST FACTO LAWS

ENUNCIATED IN CALDER V. BULL..........

THE COURT HAS CONSISTENTLY AFFIRMED

THE FOUR CALDER CATEGORIES AS THE

TOUCHSTONE FORMULATION OF THE

PROHIBITIONS OF THE EX POST FACTO

Eh ak AT A bd.Ceus bie banda rh kbd eucabo due as

CALDER’S FOURTH CATEGORY IS CONSIS-

TENT WITH THE HISTORY AND PURPOSES

ANIMATING THE EX POST FACTO CLAUSE,

AND THE COURT SHOULD NOT OVERRULE

THIS IMPORTANT RULE..................55:

RETROACTIVE REPEAL OF THE CORROBO-

RATION REQUIREMENT IS ALSO UNCON-

STITUTIONAL UNDER THE BEAZELL

FORMULATION, BECAUSE IT DEPRIVED

PETITIONER OF AN ABSOLUTE DEFENSE TO

Ay FEU OF GOUT ii cc cc cdcsccccccsnecs

Se a6 0s o Sue deeee teed oaysedebensaiwe

10

TABLE OF AUTHORITIES

Page

Cases

Baptist Hosp. of Southeast Texas, Inc. v. Barber, 714

S.W.2d 310 (Tex. 196)... cccrcvvcccsaccccesivevedne 4

Beazell v. Ohio, 269 U.S. 167 (1925).............. passim

Beltran v. State, 728 S.W.2d 382 (Tex. Crim. App.

19G7) .. 00 cnvcnnsnsseecbudeenéu dies eher tener sana 19

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........ passim

California Dep't of Corrections v. Morales, 514 U.S.

GD (19GB). occ iccccpecctceseseketeneevebtavenees 8, 14

Carter v. Kentucky, 450 U.S. 288 (1981)................ 4

City of Canton v. Harris, 489 U.S. 378 (1989).......... 4

Collins v. Youngblood, 497 U.S. 37 (1990)......... passim

Coy v. Iowa, 487 U.S. 1012 (1988)..... 2.6.66. e ee eees 18

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ........ 11

Frank v. Mangum, 237 U.S. 309 (1915) ............ 14, 15

Friedel v. Texas, 832 S.W.2d 420 (Tex. App. 1992, no

POR.) ..ccccncccvanesdsadencspectsecneenndheathners 19

Gasperini v. Center for Humanities, Inc., 518 U.S. 415

(29D) «nc cncdéucevsbsenbuadeted ne spehesteeeageuue 13

Heckathorne v. Texas, 697 S.W.2d 8 (Tex. App. 1985,

pet. ref’)... ccccccscsvccccccrccssctesetesousuens 4

Hopt v. Utah, 110 U.S. 574 (1884). ..... 2.6... 08. 7, 8,9

James v. United States, 366 U.S. 213 (1961) ........... 14

Jones v. Texas, 789 S.W.2d 330 (Tex. App. 1990, pet.

SOSA 5 civsandtanns das hocvaniotwtheunsbenbustewes 19

iii

TABLE OF AUTHORITIES

Page

Lynce v. Mathis, 519 U.S. 433 (1997) ................ 6, 8

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .... 11

Miller v. Florida, 482 U.S. 423 (1987).......... 11, 14, 16

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)......... +

Riggins v. Nevada, 504 U.S. 127 (1992)................ 4

Scoggan v. Texas, 799 S.W.2d 679 (Tex. Crim. App.

Ps eeaAetaiuS Ha cWntidhensctckes inte dhsccs ss 19

Shelby v. Texas, 800 S.W.2d 584 (Tex. App. 1990),

rev'd on other grounds, 819 S.W.2d 544 (Tex.

SE EE Sc ebdys We ra Naabstbecedasevacecs: 4

}

Weaver v. Graham, 450 U.S. 24 (1981)............. 11, 12

Zule v. Texas, 802 S.W.2d 28 (Tex. App. 1990, pet.

Nee wees 4

State STATUTE

Tex. Code Crim. Proc. art. 38.07 (1983)............... 3

Court Rute

TEEN MEE Seiiedacas ind cea tdpedescuseviccecsns 4

OrHer AUTHORITIES

Zechariah Chafee, Jr., Three Human Rights in the

Cemeeetiee GF I7E7 (ISS) «oon. c sc ccceccccccccccess 17

Joseph <n Commentaries on the Constitution of

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1

INTRODUCTION

Respondent's position would erode the foundation of

Ex Post Facto Clause law - the four-category formulation

of prohibited ex post facto laws enunciated more than

two centuries ago in Calder v. Bull, 3 U.S. (3 Dall.) 386

(1798), and affirmed in numerous subsequent decisions of

this Court, lower federal courts, and state courts. Respon-

dent and its amici make essentially four arguments in

support of their position.

First, they argue that the retroactive statutory change

at issue in this case is not within the terms of Calder’s

fourth category. This argument is refuted by the clear

language of Calder. Second, Respondents argue that Cal-

der’s fourth category has been overruled. As demon-

strated below, far from overruling category four, this

Court has consistently reaffirmed that Calder’s four cate-

gories are the definitive formulation of the prohibi ions of

the Ex Post Facto Clause, and expressly distinguished Cal-

der’s fourth category when laws falling outside that cate-

gory were upheld. Third - and the crux of the matter -

they argue that the Court should take this opportunity to

overrule Calder category four, because it is allegedly not

consistent with the original understanding of the Ex Post

Facto Clause and its underlying policies. Calder’s fourth

category should not be overruled because the stability of

ex post facto law is vital for both legislatures and citizens.

Calder category four, particularly as it applies to the retro-

active criminal law at issue, prevents singling out dis-

favored groups or persons for retroactive application of

new criminal laws. Respondent's historical argument is

based on excerpts from general discussions covering

broader topics, none of which purported to be offering a

complete list of ex post facto laws.

2

At bottom, Respondent’s position would eliminate

the fundamental protection provided by Calder’s fourth

category - for all people and all future cases — in order to

prevent one specific accused sexual offender from having

some of his convictions overturned. There can be no

exception, however, to the proscriptions of the Ex Post

Facto Clause for a “bad crime,” a “bad man” or an

“unwise” prior law, because any such exception would

swallow the rule.

Finally, respondent and its amici argue that the retro-

active elimination of the defense on the merits at issue

here is not proscribed by Beazell v. Ohio, 269 U.S. 167

(1925). Beazell indicates that laws that provide a defense

“which may be considered by the court and jury in deter-

mining guilt or innocence” may not be changed retroac-

tively. Id. at 170. It notes as one such law, a law that

establishes the “(t]he quantum and kind of proof required

to establish guilt.” Id. At the time of the alleged conduct

at issue, the prior Texas statute provided a complete

defense on the merits to a person in Petitioner's position.

Under that law, the absence of corroboration or outcry

entitled Petitioner to an acquittal as a matter of law.

Because this defense directly determined the ultimate

question of guilt or innocence, retroactive elimination of

that defense runs afoul of the core of Beazell’s prohibition.

>

3

ARGUMENT

I. RETROACTIVE APPLICATION OF THE 1993

AMENDMENT OF ARTICLE 38.07 FALLS

SQUARELY WITH THE CONSTITUTIONAL PRO-

HIBITION ON EX POST FACTO LAWS ENUNCI-

ATED IN CALDER V. BULL.

Retroactive application of the 1993 Amendment falls

squarely within Calder’s fourth category, which proscribes

“le]very law that alters the legal rules of evidence, and

receives less, or different, testimony, than the law required at

the time of the commission of the offence, in order to

convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390

(1798) (emphases added). Retroactive application of the

1993 Amendment to Petitioner did precisely that. Under

the law in effect at the time of Petitioner’s alleged con-

duct, the absence of corroborating testimony meant that,

as a matter of law, KM’s testimony was insufficient evi-

dence “to convict the offender.” See Tex. Code Crim.

Proc. art. 38.07 (1983); Pet. Br. 4-7, 12-13.)

' Respondent argues for the very first time in its merits

brief before this Court that the 1983 version of Article 38.07 did

not require eyewitness corroboration, and that the evidence

adduced at Petitioner's trial was somehow sufficient to satisfy

the corroboration requirement of the pre-amendment version of

Article 38.07. See Resp. Br. 4 n.2, 17 n.9. Respondent never

previously argued — in its opposition to certiorari or in any of its

state court appellate briefs — that there was sufficient evidence

of corroboration under the prior statute. See, ¢.g., Resp. Br. in

Opp. to Cert. at 4-8 (Apr. 26, 1999); id. at 5 (arguing that, because

1993 Amendment applied retroactively, “corroboration of a

fourteen year-old victim's testimony was no longer required at

the time of . . . trial, even when the victim had not made an

outcry for several years.”); id. at 6 n.5 (citing without contesting

Petitioner's assertion that “there was no corroborating

evidence” at trial); Appellee’s Brief at 46-49 (Oct. 31, 1997);

4

Petitioner’s conviction was made possible solely by

the retroactive application of the 1993 Amendment -

Appellee’s Supplemental Brief at 1-2 (Feb. 12, 1998).

(Respondent's two state court appellate briefs have been lodged

with the Clerk.) For several reasons, this newfound argument is

unavailing. First, Respondent's failure to raise the argument

before the Texas appellate courts constitutes a waiver of the

argument before this Court. See, e.g., Riggins v. Nevada, 504 U.S.

127, 133 (1992); Carter v. Kentucky, 450 U.S. 288, 304 (1981)

(refusing to consider argument advanced by state in United

States Supreme Court, because government failed to present the

argument to the Kentucky Supreme Court). Second, in any event,

the Court should deem the issue waived because it was not

raised in Respondent's opposition to the petition for certiorari.

Sup. Ct. R. 15.2; City of Canton v. Harris, 489 U.S. 378, 383-85

(1989). Third, if the corroboration issue had been raised below,

the fact that the Texas Court of Appeals decided the

constitutional question would indicate that the court concluded

the evidence at trial was insufficient to satisfy the corroboration

requirement of the pre-amendment statute. Like federal courts,

Texas state courts do not address the constitutionality of a

statute if a case may be decided without reaching the

constitutional question. See, e.g., Baptist Hosp. of Southeast Texas,

Inc. v. Barber, 714 S.W.2d 310 (Tex. 1986). Fourth, because Texas

courts appear divided on the question of whether Article 38.07

requires eyewitness corroboration, compare Shelby v. Texas, 800

S.W.2d 584, 586 (Tex. App. 1990), rev'd on other grounds, 819

S.W.2d 544 (Tex Crim. App. 1991), and Heckathorne v. Texas, 697

S.W.2d 8, 12 (Tex. App. 1985, pet. ref’d), with Zule v. Texas, 802

S.W.2d 28, 32 (Tex. App. 1990, pet. ref’d), Respondent is

effectively asking this Court to act as the final arbiter of Texas

law, a function properly reserved to the Texas Supreme Court.

See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992). Finally,

contrary to the implication at Resp. Br. 4 n.2, no witness, other

than KM, testified to the jury that he or she saw any indication

of any illegal contact between KM and petitioner. See, e.g., Trial

Tr. 305-06 (testimony of mother Eleanor that she never saw

Petitioner do anything sexual with KM); id. at 310 (mother’s

testimony that she had “absolutely” no inkling about alleged

——

5

which, as Respondent concedes, “abrogatied] . . . the

corroboration requirement” of the prior law. Resp. Br. 16.

The 1993 repeal of the corroboration requirement was

thus a substantive change in Texas criminal law which

allowed the prosecution to convict Petitioner based on

“less or different testimony” (KM’s testimony alone) than

the minimum required (KM’s testimony plus corrobora-

tion or outcry) at the time of the alleged conduct. See

Calder, 3 U.S. at 390.

Respondent’s argument that category four prohibits

only retroactive changes in “the definition of crimes” or

“increases [in] punishment,” Resp. Br. 7, 23, makes no

linguistic or logical sense. If this were true, there would

be no category four, because it would be entirely redun-

dant of categories one and three.

Il. THE COURT HAS CONSISTENTLY AFFIRMED

THE FOUR CALDER CATEGORIES AS THE

TOUCHSTONE FORMULATION OF THE PROHI-

BITIONS OF THE EX POST FACTO CLAUSE.

Contrary to Respondent's argument, the Court has

consistently affirmed that the laws prohibited by the Ex

Post Facto Clause are those set forth in the four Calder

categories, including the fourth category. See, e.g., Collins

v. Youngblood, 497 U.S. 37, 46 (1990) (“the prohibition

which may not be evaded is the one defined by the Calder

categories”). From 1798 to the present, the Court has cited

Calder's four categories, including the fourth category's

core prohibition of laws retroactively changing the

(sex) crimes at the time). Evidence that petitioner sent his

stepdaughter cards and gifts, or that KM identified a massage

vibrator, Resp. Br. 4 n.2, is not evidence corroborating alleged

sexual contact between KM and Petitioner.

6

amount of proof required for conviction, as defining the

scope of the prohibition against ex post facto laws. See,

e.g., Lynce v. Mathis, 519 U.S. 433, 441 n.13 (1997) (quoting

with approval all four Calder factors).

Respondent does not argue — because it cannot - that

the Court has expressly overruled the fourth category.

Indeed, if this Court had already expressly overruled

Calder’s fourth category, it is doubtful that the Court

would have granted Petitioner's pro se certiorari petition.

Instead, Respondent and amici rely upon strained con-

structions of a few of this Court’s subsequent cases to

argue that the category has been “implicitly” overruled.

Resp. Br. 23. In fact, the very cases upon which Respon-

dent relies demonstrate the continuing vitality of the

fourth category.

Respondent relies heavily on Collins for its argument

that the Court has rejected the four Calder categories in

favor of a narrower two-part test. Resp. Br. 15-18. Far

from limiting Calder, however, Collins expressly and

unequivocally reaffirmed the Calder categories. Collins,

497 U.S. at 46. What Collins rejected was expansion of the

Ex Post Facto Clause beyond the four Calder categories.

Id. at 46-51. Collins overruled two late nineteenth century

decisions precisely because they exceeded Calder’s scope.

Id.; see id. at 49 (rejecting a “more expansive definition of

ex post facto laws” adopted by Kring v. Missouri and

Thompson v. Utah, because “(t]he Court’s departure from

Calder’s explanation of the original understanding of the

Ex Post Facto Clause was . . . unjustified”).

The United States rests its argument that Collins over-

ruled Calder’s two-hundred-year-old rule on a footnote.

See U.S. Br. 10-12 (citing Collins, 497 U.S. at 43 n.3). This is

more than this footnote can bear. First, contrary to the

7

United States’ contention, the Collins footnote did not

conclude that Calder category four was “overbroad.”

Rather, it rejected any interpretation of Calder’s fourth

category that would cover all alterations in the “ ‘legal

rules of evidence.’ ” 497 U.S. at 43 n.3. This is correct, as

Petitioner has emphasized. Pet. Br. 20. Calder’s fourth

category contains the conjunctive requirement that the

new law permit conviction on “less, or different, testimony

than the law required at the time of the commission of the

offense, in order to convict the offender.” 3 U.S. at 390

(emphases added). The United States’ discussion also

omits the approving citation, in the very same Collins

footnote, to the statement in Hopt v. Utah, 110 U.S. 574,

590 (1884) that “approv[ed] procedural changes [that]

‘leav[e] untouched the . . . amount or degree of proof essential

to conviction.’” Collins, 497 U.S. at 43 n.3 (emphasis

added).

Second, contrary to Respondent's suggestion, the text

in Collins to which footnote three is appended makes

clear that the Court understands Beazell to be an affirma-

tion of the four Calder categories. See id. at 42. In that

discussion, the Court first quotes the four Calder catego-

ries, cites cases affirming Calder’s formulation, and con-

cludes that Beazell was simply summarizing the “well-

accepted” “principles” enunciated in Calder. Id. Thus, far

from overruling Calder’s fourth category, footnote three

provides further support for the Collins’ holding that “the

prohibition which may not be evaded is . . . defined by

the Calder categories.” Id. at 46.2

2 Contrary to the further contention of the United States,

U.S. Br. 12-13, this Court’s two Ex Post Facto Clause decisions

rendered after Collins do not, in any way, undercut Calder’s

8

Respondent and its amici similarly misapprehend the

two other cases upon which they rely to argue that Calder

category four has been overruled, Hopt v. Utah, 110 U.S.

574 (1884) and Beazell v. Ohio, 269 U.S. 167 (1925). In Hopt,

the Court held that retroactive application of a pro-

cedural rule “enlarg[ing] the class of persons who may be

competent to testify” did not violate the Ex Post Facto

Clause, because it did not reduce the “quantity or the

degree of proof necessary” to convict the accused. 110

U.S. at 589. The Court expressly distinguished the facially

neutral evidentiary change at issue in that case from a

change which, like the retroactive elimination of the cor-

roboration requirement here, allows conviction on less

evidence than required by the law in effect at the time of

the conduct, explaining: “[a]ny statutory alteration of the

legal rules of evidence which would authorize conviction

upon less proof, in amount or degree, than was required

when the offence was committed, might, in respect of that

offence, be obnoxious to the constitutional inhibition upon ex

post facto laws.” Id. at 590 (emphasis added).

Respondent asserts that “less proof” in Hopt refers

only to a change in a generalized burden of proof - e.g.,

absolute certainty - not a specific burden of proof — e.g.,

fourth category. Neither of those cases involved retroactive

changes affecting the requirements for conviction or

determination of guilt. Rather, the issue in both of those cases

was the question of post-conviction changes in the law that

might enlarge punishment, specifically whether a retroactive

change in the law impermissibly increased the punishment for

persons who had already been convicted and were serving

prison sentences. See Lynce v. Mathis, 519 U.S. 433 (1997);

California Dep't of Corrections v. Morales, 514 U.S. 499 (1995).

Moreover, Lynce quoted Calder’s fourth category with approval.

519 U.S. at 441 n.13.

9

the requirement of a corroborating witness. “Less” means

“less.” As Respondent concedes, the prior Texas statute

set a minimum “sufficiency of evidence.” Resp. Br. 18.

The new statute enabled petitioner’s conviction on “less”

evidence, i.e., without corroboration or outcry.’ In all

events, Hopt simply cannot be read to overrule Calder’s

fourth category.* Beazell is also fully consistent with the

core prohibition of Calder’s fourth category. Beazell held

that changes in “the manner in which the trial of those

... accused shall be conducted” do not offend the Ex Post

Facto Clause. 269 U.S. at 170. The next three sentences

distinguish categories of laws that were not at issue in

Beazell but would violate the Ex Post Facto Clause. The

first two of these three sentences mirror the first three

Calder categories, i.e., they describe laws that change the

“legal definition of the offense” (i.e., Calder category one),

increase the “criminal quality of the act charged” (i.e.,

category two), and increase “punishment” (category

three). 269 U.S. at 170. The third sentence certainly

3 Moreover, respondent's argument is based on an elliptical

quotation of a single sentence that leaves out the very language

quoted by Collins. Resp. Br. 23. The omitted language reiterates

that the Court was approving only retroactive changes that

“leav[e] untouched the nature of the crime and the amount or

degree of proof essential to conviction,” Hopt, 110 U.S. at 590

(emphasis added). See Collins, 497 U.S. at 43 n.3.

* Contrary to Respondent’s suggestion, and unlike the

change in the law at issue in Hopt, Article 38.07’s corroboration

requirement was not a witness competency rule. See Resp. Br.

25-27. Both before and after the 1993 Amendment, KM waz .ully

competent to testify. However, only after the statutory change

was her testimony sufficient by itself to sustain a conviction.

Hopt expressly distinguished such a statutory change from a

change in witness competency rules. Hopt, 110 U.S. at 590.

10

includes Calder’s fourth category: “The quantum and kind

of proof required to establish guilt, and all questions which

may be considered by the court and jury in determining

guilt or innocence,. .. .” 269 U.S. at 170 (emphases added).

Indeed, this Court has recognized that Beazell simply

summarized the “well-accepted . . . principles” enunci-

ated in Calder. Collins, 497 U.S. at 42.

Ill. CALDER’S FOURTH CATEGORY IS CONSIS-

TENT WITH THE HISTORY AND PURPOSES

ANIMATING THE EX POST FACTO CLAUSE,

AND THE COURT SHOULD NOT OVERRULE

THIS IMPORTANT RULE.

Calder’s formulation of the four categories of laws

prohibited by the Ex Post Facto Clause should carry with

it a strong presumption of validity. The formulation,

announced by Justice Chase shortly after the ratification

of the Constitution, “ ‘has never been denied’” by any

decision of this Court. Collins, 497 U.S. at 42 (quoting

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 391 (Miller, J.,

dissenting) (1867)); see Pet. Br. 23 n.13. For more than two

hundred years, this Court has repeatedly and consistently

cited the four Calder categories as definitive.

A. Stability in ex post facto law is at least as impor-

tant as in any other context. In order for the Court to

provide clear guidance to both the federal and state legis-

latures, and for the Ex Post Facto Clause to perform its

essential functions, it is critical that the Court maintain

clear and unshifting rules regarding what legislative acts

are and are not unconstitutional, retroactive criminal

laws. Overruling, after 201 years, one of Calder’s bedrock

a.

ea

——f=

11

four categories would surely undermine that essential

stability.®

B. Calder’s fourth category is necessary to fulfill a

basic purpose of the Ex Post Facto Clause: to protect

individuals or groups from being singled out for retroac-

tive criminal legislation. See, e.g., Miller v. Florida, 482 U.S.

423, 429-30 (1987); Weaver v. Graham, 450 U.S. 24, 29

(1981); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38

(1810); Pet Br. 14-19. The Ex Post Facto Clause is a

5 The United States argues that category four may be readily

overruled because it was dicta. See U.S. Br. 13-14. This argument,

if it were accepted, would apply equally to all four of the Calder

categories. Moreover, the potential implications of this argument

are broad and unsettling. The argument would call into question

fundamental precepts enunciated in dicta by the Supreme Court

in other important foundational cases in the early years of this

nation. For example, if Marbury v. Madison were confined to its

narrow holding that this Court lacked original jurisdiction over

that case, see 5 U.S. (1 Cranch) 137, 170-77 (1803), then the

foundations of the legitimacy and scope of judicial review -

established in an extensive discussion that was dicta — could be

open to question. See Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803). To the knowledge of Petitioner’s counsel, this Court has

never called into question any of the foundational principles of

early landmark decisions such as Marbury, or Calder v. Bull, on the

ground that they were (often) dicta.

© Contrary to Respondent's suggestion, Resp. Br. 2, 7, 40-42,

the Court has never held that a showing of reliance by the

accused is necessary to demonstrate that a retroactive statutory

change violates the Ex Post Facto Clause. Rather, the Court has

simply noted that, in addition to prevention of retroactive

criminal legislation that singles out disfavored groups, a “second

concern” underlying the Clause is to “ ‘give fair warning’ ” and

allow reliance on existing laws “until [they are] explicitly

changed.” Miller v. Florida, 482 U.S. 423, 430 (1987) (emphasis

added). For example, if reliance were required, Calder’s second

and third categories would be in doubt. If a state changed the

12

constitutional bulwar.. against such acts of the legisla-

ture, which, by its nature, may respond to popular pas-

sions to the detriment of Cisfavored groups. As this Court

has explained, the Clause serves to enforce structural

limitations on the legislative branch established by the

Constitution, “uphold[ing] the separation of powers by

confining the legislature to penal decisions with prospec-

tive effect and the judiciary and executive to applications

of existing penal law.” Weaver, 450 U.S. at 29 n.10 (citing

Ogden v. Blackledge, 6 U.S. (2 Cranch) 272, 277 (1804)).

Simply put, it is improper for legislatures to place their

thumb on the judicial scale in order to ensure convictions

for past conduct. That is indisputably what the retroactive

application of the new Texas statute was designed to do

and in fact does. See Pet. Br. 17-18.

Moreover, as Petitioner has demonstrated, the retroac-

tive repeal of the corroboration requirement was plainly

targeted at an unpopular group. See Pet. Br. 17-19.

Respondent misapprehends the nature of the constitu-

tional violation when it contends that the 1993 amend-

ment merely “put [petitioner] on a level playing field

with other criminal defendants.” Resp. Br. 40. As Peti-

tioner has emphasized, it is entirely constitutional for the

Texas legislature to change the corroboration require-

ment, so long as it makes the change prospective. The

vindictive aspect of the 1993 repeal of the corroboration

requirement that singled out a disfavored group - and

thus the source of its constitutional infirmity — was its

punishment for a particular kind of murder from life

imprisonment to eligibility for capital punishment, it is doubtful

that a murderer could show reliance on the prior limitation to

life imprisonment in committing his or her crime.

13

retroactive application. Respondent points to no act of the

Texas legislature in modern history making a retroactive

change in the substantive criminal law applicable to ll

defendants, or even one singling out a group other than

accused sex offenders.

In addition, other than perhaps a law that defines an

element of the crime, it is difficult to imagine a law more

inextricably intertwined with the question of a defen-

dant’s guilt or innocence than a law that establishes the

minimum evidence necessary for conviction. Indeed, it is

indisputable that th. aim of the prior Texas statute was

designed to protect the innocent, Pet. Br. 30 & 25 n.14; see

Resp. Br. 26, and that the new statute is designed to make

conviction easier and thus protect victims of sexual

offenses, Pet. Br. 17-18. As Calder and Beazell, 269 U.S. 167,

170 (1925), indicate, legislative changes in rules govern-

ing the ultimate question of determining guilt or inno-

cence may not be made retroactive.”

”? As Petitioner demonstrated in his opening brief, the law

at issue was enacted for substantive reasons and plainly affects

substance, not procedure. See Pet. Br. 32-34. Beyond mere

conclusory statements that Article 38.07 is a “procedural” law,

neither Respondent nor its amici contest that an analogous law

in a civil case - where a defendant's liberty is not at stake -

would be considered substantive. See id. at 33-34. Indeed,

Respondent's statement that “[t]he Texas Legislature

acted . . . out of concern for the[ | victims,” Resp. Br. 39, makes

clear that the purpose of the statutory change was substantive,

not procedural. Indeed, Respondent (unintentionally)

understates the importance of the public policy of protecting the

victims of sexual offenses by any assertion that a law designed

to implement that policy is merely procedural. Cf. Gasperini v.

Center for Humanities, Inc., 518 U.S. 415, 429-30 (1996) (for Erie,

state rule is substantive where the rule is phased as “a

procedural instruction, but the State’s objective is manifestly

substantive”) (citation omitted).

14

At times, Respondent's argument might be read to

suggest there should be some sort of a “bad person,”

“bad crime,” or “unwise prior law” exception to the

protections of the Ex Post Facto Clause. See Resp. Br. 1-2,

11, 17, 39-40. Any such exception would effectively ren-

der the Clause a nullity. The legislature always believes

that the changes it enacts to the criminal law are wise,

and render “bad” people subject to criminal punishment.

This Court would not second-guess such legislative pol-

icy choices. Rather, as Justice Harlan explained, the Ex

Post Facto Clauses “rest on the apprehension that the

legislature, in imposing penalties on past conduct, even

though the conduct could properly have been made criminal

and even though the defendant who engaged in that conduct in

the past believed he was doing wrong . . . may be acting with

a purpose . . . to impose by legislation a penalty against

specific . . . classes of persons.” James v. United States, 366

U.S. 213, 247 n.3 (1961) (Harlan, J., separate opinion)

(emphasis added).

Thus, although this particular case involves convic-

tion for a sexual offense and the prior Texas statute could

readily be characterized as outmoded and unwise, those

factors are irrelevant. If Calder’s fourth category were

overruled, it would be overruled for all cases for all

time.®

® This Court has wisely declined to dilute the protections of

the Ex Post Facto Clause just because the particular case

involved convicted sex offenders. See, e.g., Miller, 482 U.S. at

433-34 (refusing to allow retroactive increase in punishment for

convicted sex offender, stating that “the sole reason for the

increase was to punish sex offenders more heavily”); accord,

California Dep't of Corrections v. Morales, 514 U.S. 499, 510-11 &

n.7 (1995). But see generally Frank v. Mangum, 237 U.S. 309 (1915)

15

C. Contrary to the contentions of the United States,

U.S. Br. 13-18, the historical groundings of the Ex Post

Facto Clause support Calder’s fourth category and Peti-

tioner’s position. See Pet. Br. 14-19. The United States

attempts to narrow the fourth Calder category through a

selective, wooden interpretation of constitutional history.

First, the United States cites the “narrow interpreta-

tion of the scope of the Clause” expressed in some of the

debates at the Constitutional Convention, and in some of

the Federalist Papers. U.S. Br. 17-18. Each of the citations

the United States relies upon, however, mention only the

first Calder category: “ ‘caus[ing] that to be a crime which

is no crime’ ” (as one delegate said at the Convention) or

“ ‘the subjecting of men to punishment for things which,

when they were done, were breaches of no law’” (as

stated in Federalist No. 84). Id. This is because none of the

sources the United States cites is purporting to catalog all

laws prohibited by the Ex Post Facto Clause. Rather, each

source is a general discussion of the virtues of the Consti-

tution, and is citing one example of those virtues from the

Ex Post Facto Clause. If these “narrow” statements were

viewed as definitive legal definitions, they would read

out of the law not only the fourth Calder category, but the

second and third - concerning retroactive aggravation of

the crime and retroactive increases in punishment - as

well.

In contrast to the contextually limited sources cited

by the United States, Justice Chase analyzed the full

scope of the Ex Post Facto Clause and offered a complete

(Court rejected habeas .laims of Leo Frank, who had been

convicted of molesting and murdering a female child); id. at 345

(Holmes and Hughes, JJ., dissenting).

16

taxonomy of its prohibitions. Thus, Justice Chase’s enu-

meration of Calder’s fourth category, prohibiting laws

“receiv[ing] less, or different, testimony, than the law

required at the time of the commission of the offence, in

order to convict the offender,” is entitled to great weight,

both for its closeness in time to the Constitution and for

its place as an integral part of the first complete descrip-

tion of the scope of the Ex Post Facto Clause. Accordingly,

this Court has emphasized the primacy of Justice Chase's

four categories in Calder. E.g., Miller, 482 U.S. at 429.

Moreover, Respondent and its amici ignore the second

source to give a complete description of the Ex Post Facto

Clause: Justice Story. See Pet. Br. 21-23. He too stated that

the Ex Post Facto Clause bars retroactive changes in

criminal law “whereby different, or less evidence, is

required to convict an offender, than was required, when

the act was committed.” Joseph Story, Commentaries on the

Constitution of the United States § 1339 (1833).

Second, examining the case of Sir John Fenwick,

which informed Calder’s fourth category, the United

States notes that the ex post facto law in Fenwick’s case

was inflicted via a bill of attainder. See U.S. Br. 15; see

also Resp. Br. 36-37 & n.18. From this, the United States

concludes that the fourth Calder category “appears to

have been intended to apply only to laws that alter the

rules of evidence to convict a particular, named

offender.” U.S. Br. 15. Of course, that is not what Calder

says.

Calder itself illustrates the error and illogic of this

argument. Just as Justice Chase supported the fourth

category with a citation to Fenwick, he supported the first

category — laws criminalizing actions that were “innocent

when done” - with a citation to the 1641 case of the Earl

17

of Strafford. See Calder, 3 U.S. (3 Dall.) at 390 (Chase, J.);

id. at 389 note a. In Strafford’s case, Parliament “dec-

lar[ed] acts to be treason, which were not treason, when

committed.” Id. at 389. As in Fenwick’s case, Strafford

was convicted via a bill of attainder. See Zechariah

Chafee, Jr., Three Human Rights in the Constitution of 1787,

at 109-13 (1956) (describing Strafford’s case). The United

States’ argument thus proves too much. Under the logic

of the United States’ position, the Ex Post Facto Clause

would not prohibit a state from retroactively criminaliz-

ing innocent conduct, so long as the state applied the law

to an entire class of offenders and did not single out a

“particular, named offender.” The fourth Calder category,

like the first, is not redundant with the Attainder Clause,

and is not limited to cases that single out individuals.

Finally, the United States contends that Calder did not

mean what it said. Justice Chase, the United States,

argues, expressed agreement with Blackstone’s Commen-

taries, which mention only the first Calder category. See

U.S. Br. 16. But Chase mentions Blackstone immediately

after defining ex post facto laws as “those that create, or

aggravate, the crime; or increase the punishment, or

change the rules of evidence, for the purpose of conviction.”

Calder v. Bull, 3 U.S. at 391 (emphasis added). The United

States’ suggestion — that Justice Chase by his citation to

Blackstone intended to flatly contradict the express lan-

guage of his opinion — is thus unavailing.’

*° The United States’ contention that Justice Paterson “relied

on Blackstone's definition,” U.S. Br. 16, also must be placed in

context. Justice Paterson relied on Blackstone only to support his

argument that the Ex Post Facto Clause should not apply to civil

laws - in the sentence immediately following his quotation of

Blackstone, Paterson concludes that Blackstone “unquestionably

18

* * *

It remains, and always will remain, “a truism that

constitutional protections have costs.” Coy v. lowa, 487

U.S. 1012, 1020 (1988). Calder’s fourth category of prohib-

ited ex post facto laws provides a necessary, though at

times unpopular, limit on the reach of legislatures with

respect to obtaining convictions for conduct that has

already occurred. It properly protects against legislation

that retroactively permits less or different proof for ¢on-

viction of a past crime, especially when the law is retroac-

tively directed at a disfavored group.

IV. RETROACTIVE KEPEAL OF THE CORROBORA-

TION REQUIREMENT IS ALSO UNCONSTITU-

TIONAL UNDER THE BEAZELL FORMULATION,

BECAUSE IT DEPRIVED PETITIONER OF AN

ABSOLUTE DEFENSE TO A FINDING OF

“GUILT.”

Retroactive application of the 1993 Amendment to

convict Petitioner also violates Beazell v. Ohio, 269 U.S.

167 (1925). Beazell’s formulation, which the United States

characterizes as “the definitive modern summary of the

scope of the Ex Post Facto Clause,” U.S. Br. 9, indicates

that the Clause prohibits retroactive repeal of any defense

“considered by the court . . . in determining guilt or

innocence.” Beazell, 269 U.S. at 170. The single example

given for such a defense is a law establishing “[t]he

refers to crimes, and nothing else.” Calder, 3 U.S. at 396 (Paterson,

J.). Thus, Paterson relied on Blackstone solely for the limited

proposition that the Ex Post Facto Clause does not cover civil

cases. The same is true of the citation to Blackstone at the

Constitutional Convention noted by the United States. See U.S.

Br. 17.

_

19

quantum and kind of proof required to establish guilt.”

Id. Collins expressly declined to limit Beazell, stating that

“(t]he Beazell formulation is faithful to our best knowl-

edge of the original understanding of the Ex Post Facto

Clause.” Collins, 497 U.S. at 42-43.

There is no basis in logic or the policies animating the

Ex Post Facto Clause for elevating “affirmative defenses”

above defenses that establish that, as a matter of law, the

defendant is not guilty. The pre-amendment version of

Article 38.07 was designed to protect the potentially inno-

cent from false accusations, and thus the State’s failure to

satisfy its terms required a judgment of acquittal. Pet. Br.

30, 25 n.14.!° It thus provided a defense on the merits, or,

in the language of Beazell, a defense “considered by the

court .. . in determining guilt or innocence.” Beazell, 269

U.S. at 170. Affirmative defenses, such as justification or

excuse, apply when the government has carried its bur-

den of introducing evidence necessary to establish a

10 The State of Texas thus imposed a necessary pre-

condition for it to obtain a conviction of the offenses at issue -

proof of corroboration or outcry. Under the prior law, the

government's failure to satisfy that condition compelled

acquittal, not remand for a new trial. See, e.g., Scoggan v. Texas,

799 S.W.2d 679, 683 (Tex. Crim. App. 1990) (applying 1983

version of Article 38.07, holding that absence of corroboration

or timely outcry compelled acquittal, remanding for entry of

judgment of “acquittal”); Friedel v. Texas, 832 S.W.2d 420, 422

(Tex. App. 1992, no pet.) (same); Jones v. Texas, 789 S.W.2d 330,

333 (Tex. App. 1992, pet. ref’d) (same); see also Pet. Br. at 30. The

requirement of a judgment of acquittal further distinguishes the

condition imposed by Article 38.07 from mere evidentiary rules.

When an appellate court finds rules of evidence were violated at

trial, the normal course is to remand the case for a new trial, not

to enter a judgment of acquittal. See, ¢.g., Beltran v. State, 728

S.W.2d 382, 389 (Tex. Crim. App. 1987).

20

prima facie case that the defendant committed an other-

wise criminal act, but additional circumstances, such as

justification or insanity, nonetheless allow a verdict of not

guilty. There is no principled basis to argue that such

affirmative defenses are somehow more significant for Ex

Post Facto Clause purposes than defenses - like Peti-

tioner’s defense in this case - that require a determina-

tion that the defendant is not guilty in the first instance.

+

CONCLUSION

Petitioner's convictions on Counts 7-10 should be

reversed and the remainder of the case remanded for

further proceedings consistent with this Court’s opinion.

Respectfully submitted,

RicHarp D. BerNsTEIN*

Carter G. PHILuPs

KATHERINE L. ADAMS

Pau. A. HEMMERSBAUGH

Brian C. Katt

Siptey & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioner

*Counsel of Record

November 15, 1999

(ie